ISLAMABAD -UNS: The Supreme Court of Pakistan on Thursday resumed hearing on a petition filed by the Election Commission of Pakistan (ECP) seeking review of April 4’s ruling regarding holding of elections in Punjab on May 14.
A three-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Ijazul Ahsan is hearing the case.
ECP lawyer Sajeel Swati is expected to submit arguments on the maintainability of the petition as he was directed by the top judge during yesterday’s hearing to present arguments regarding the “actual case”.
Today’s Hearing
At the outset of the hearing, the chief justice asked: “What is your main point in the case?” He said the court had already wasted time in discussion on an Indian court’s ruling.
Beginning his arguments, the ECP lawyer said the Supreme Court rules could not reduce the constitutional authority.
At which, Justice Ahsan inquired how the rules undermined the constitutional authority. At which, Mr Swati said the top court in various cases had declared that the scope of the review could not be limited.
Justice Akhtar remarked that the rules of the Supreme Court would become ineffective if the ECP lawyer’s logic was accepted. “You have broadened the scope more than the central case,” he added. Sometimes the power of parliament to legislate was also limited, he said.
Mr Swati said a larger bench in a contempt case had declared that the authority of the apex court could not be reduced. He added that the review petition was continuation of the main case regarding elections in Punjab.
At which, the CJP intervened and asked the ECP counsel to be precise in their arguments so the court could get what he wanted to say.
Mr Swati said existence of the caretaker set-up was a must for holding elections, adding that the Constitution provided procedure for appointment of interim governments. He said the family members of interim rulers could not take part in elections. “The ban has been imposed to ensure transparency in the polls,” the ECP lawyer said.
“If the provincial assembly is dissolved in six months, the caretaker set-up will continue for four and a half years. Whether there will be wait for four years for the dissolution of the National Assembly?” Justice Ahsan questioned.
Mr Swati replied in affirmative, saying the interim government would run the affairs for four and half years in the province. He said an article of the Constitution could not be violated while implementing the other. He argued that delay in 90 days period for election could get legal support from Article 245, saying compensation for delay in election was possible under the constitution.
The chief justice remarked that compensation could also be made by electing new government for remaining period. “How it is possible in the Constitution that an elected government serves for six months and interim set-up serves for four and a half years,” he observed.
The CJP remarked that negative powers got active in the country when elections were delayed. “How long the democracy will be sacrificed by postponing the polls,” he said.
Justice Ijazul Ahsan remarked the 90-day period for holding election had been given in the Constitution, adding that the interim set-up was appointed to hold polls. “Extension in interim government’s term is violation of the Constitution,” he remarked.
He said the ECP could not present financial and security constraints as excuses, saying: “Is election commission was not empowered?”
To which, Mr Swati said a blind eye could not be turned towards the Constitutional authority. In response, Justice Ahsan how an interim government could continue for four and half month, adding the Constitution was to implement in letter and spirit.
CJP ‘realises’ invoking Article 184/3 can lead to mistakes
During yesterday’s hearing, CJP Bandial remarked that the use Article 184/3 of the Constitution had increased, saying he had realised that it could also lead to mistake.
At the outset of the hearing, Attorney General for Pakistan Mansoor Usman Awan came to the podium to share his view on some remarks of the bench made during yesterday’s (Tuesday) hearing.
The AGP said the court had asked why the Election Commission of Pakistan (ECP) failed to raise certain points earlier. He also mentioned the top court’s remarks regarding the government being stuck to his stance about the 3-4 majority order.
He asserted that he had also submitted his argument that elections in one province would affect the polls in the National Assembly, adding that the government had also mentioned the majority judgement in its response.
The top judge told the AGP that he did not need to worry as the court was here to listen to him. He added that if any important point was raised, the court would review it and take a decision in this regard.
Referring to yesterday’s arguments related to the jurisdiction of review, he assured that the court would not use the post against the government. CJP Bandial said they were sitting here just for the work of God alone.
Speaking about claims that the SC had provided PTI Chairman Imran Khan with a Mercedes for his appearance before the court on May 11, the chief justice declared the reports false, saying he did not use this vehicle.
The chief justice also asked the AGP to ask his colleagues to avoid using harsh words in parliament.
Subsequently, ECP lawyer Sajeel Swati resumed his arguments. He highlighted that the apex court always interpreted the Constitution as a “living document”. He said the Supreme Court was the ultimate forum of justice therefore, the scope of review could not be limited.
In response, the CJP asked as per the 150 years of judicial precedents, there was a difference between the scope of review and appeal. He lamented that the ECP lawyer did not reply to this question yesterday (Tuesday).
At one point, Justice Akhtar remarked that the rules of the top court would become ineffective if the ECP’s arguments regarding the jurisdiction of a review and appeal were accepted. He said expanding the scope would reopen cases dating back several years.
