• New AGP Mansoor Usman Awan set to appear in court from today
• CJP questions political leaders’ efforts towards restoration of peace

ISLAMABAD: Asking the Election Commission of Pakistan (ECP) to come prepared to justify its decision to postpone elections to the Punjab Assembly, Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday observed that the spirit of the Constitution does not envisage the making or breaking of governments, rather focuses on ensuring good governance and bringing happiness to the people by protecting their rights.

At the same time, the CJP also shared his worries regarding the prevailing hostility, animosity, and bitterness which he said had been “sown into our polity”, while questioning the role political leaders were playing to restore peace and calm in society and seeking a ‘commitment’ from parties in this regard.

Justice Bandial made these obs­e­r­vations while heading a five-judge Supreme Court bench that had taken up PTI’s petition against the postponement of elections to the Punjab Assembly till October 8.

The bench also consisted of Justice Ijaz-ul-Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail.

The petition moved by Senator Barrister Syed Ali Zafar urged the apex court to set aside the March 22 notification of the Election Commission of Pakistan (ECP) for being ‘unconstitutional’ and ‘illegal’. Barrister Zafar described the ECP notification as the “9/11 of Pakistan’s Consti­tution” and asked the SC to order the ECP to hold elections on April 30 as announced by President Dr Arif Alvi in pursuance of the Supreme Court directive issued on March 1.

The court also issued notices to respondents namely Khyber Pak­h­tunkhwa (KP) governor, federal secretaries cabinet, parliamentary affairs and law and justice.

When Additional Attorney General Chaudhry Aamir Rehman sought more time so that new Attorney General for Pakistan (AGP) be appointed, the CJP told him that the new AGP had already met him and may also be present in the court on Tuesday.

Informed sources later told Dawn that Mansoor Usman Awan had called on the CJP. Mr Awan had been appointed AGP before Shehzad Ata Elahi, but he opted out after his appointment notification was not issued on time.

Election ‘flaw’ affects fundamental rights

During the hearing, CJP Bandial said timely elections held honestly, justly, fairly and in accordance with law were crucial for the democratic system of government mandated by constitution. Any flaw, deficiency or failing in the holding of general elections was, prima facie, a matter of public importance that affected the fundamental rights of the voting public, he noted.

But this also required a great deal of contribution on part of the political parties, the CJP observed, asking Barrister Zafar what role his party was playing for restoration of peace and calmness in society.

He made it clear that the court did not want to interpret the laws and the constitution in the vacuum, but “we cannot divorce ourselves from reality”. The CJP observed if the party wanted transparent elections, it must also be supported by peace in a manner that corrupt practices were guarded against.

A member of the bench, Justice Mandokhel, wondered if the petitioner wanted implementation of the March 1 order of the apex court, then why it did not approach the relevant high court under Article 187. He also questioned which of the Supreme Court orders the petitioner was relying on. Besides, he raised the point whether the election date of April 30 as announced by President Alvi was within the constitutional period of mandatory 90 days.

When Barrister Zafar said he wanted implementation of March 1 judgment, Justice Mandokhel wondered if the decision could be called a court order.

On the other hand, Justice Munib Akhtar observed that the postponement of elections by the ECP was an obstruction and this clog could only be removed by the Supreme Court. He reminded his colleagues that the March 1 short order was signed by all the five judges and therefore it was the order of the court.

Justice Ijaz-ul-Ahsan said that ECP had accepted the SC’s March 1 decision before consulting President Alvi, who announced the elections date. “The stand the ECP is taking now seems contradictory,” he remarked.

The CJP added that President Alvi announced the date on the majority decision of the court, but the important question was whether the ECP enjoyed the jurisdiction to annul the date appointed by the president.

According to him, such an issue had never been dealt by the SC before, though election schedule was extended twice in the past at the time of martyrdom of former prime minister Benazir Bhutto in 2007 and at the time of transition from an autocratic government to democratic government in 1988.

Justice Bandial said the ECP could modify the election schedule, but the point to ponder on was if it could simply “wipe out” the scheduled elections.

“This is altogether a new situation and therefore involves a crucial question of public importance about enforcement of the fundamental rights,” he remarked.

The CJP then said the court would like to examine the ECP authority under the constitution to postpone the elections.

About Article 254 which the ECP had referred to while postponing the elections, the CJP said that provision should not be considered as “indemnification” as though it validates some action, but it does not exonerate the wrong.

Published in Dawn, March 28th, 2023

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