SC overrules ECP, wants Punjab to vote on May 14

Published April 5, 2023
ISLAMABAD: PML-N lawyers protest outside the apex court building, holding placards decrying the Supreme Court verdict, on Tuesday.—Tanveer Shahzad
ISLAMABAD: PML-N lawyers protest outside the apex court building, holding placards decrying the Supreme Court verdict, on Tuesday.—Tanveer Shahzad

• Top court orders govt to release Rs21 billion for Punjab, KP elections by April 10; petitioner asked to approach appropriate forum for KP
• Three-member bench asks Centre, Punjab caretaker set-up to provide sufficient personnel for election duties

ISLAMABAD: In a una­n­imous judgement, a three-member bench of the Sup­reme Court led by Chief Justice Umar Ata Bandial on Tuesday fixed May 14 as the new date for elections to the Punjab Assembly, as the apex court quashed the Election Commission of Pakistan’s (ECP) decision to extend the polls date from April 10 to Oct 8.

However, for the elections in Khyber Pakh­tunkhwa (KP), the court said since the matter was not adjudicated upon, the petitioner will have permission to approach any forum as deemed app­ropriate for seeking relief.

The bench, headed by CJP Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, declared the ECP notification issued on March 22 “unconstitutional, without lawful authority or jurisdiction and void-ab-initio of no legal effect”.

“Neither the Constitu­tion nor the law empowers the commission to extend the date of elections beyond 90 days under Article 224(2) of the Constitution,” the judgement explained.

As the bench was pronouncing the judgement in Courtroom No.1 outside the Supreme Court, a large number of lawyers both representing the ruling coalition partners as well as the PTI canvassed to demonstrate a show of power. Before the announcement of the verdict, Law Minister Azam Nazeer Tarar and Interior Minister Rana Sanullah Khan said any decision by the three-judge bench would not be acceptable.

According to Article 190 of the Constitution, executive authorities were required to act in aid of the Supreme Court and cannot disobey or refuse to implement a judgement of the apex court, he said.

‘Election programme’

Before the judgement, the secretaries for defence and finance also furnished their reports before the top court, but the judgement explained that the need for modifications in the election programme arose for the reasons that on March 22 when the notification was issued, the matters had reached up to the stage 5 of the notified election programme, but ECP notification unlawfully purported to withdraw the election programme.

Thus, the remaining stages (No. 6 to 11) could not be given effect to, and in the meanwhile, 13 days have been lost on account of the unlawful order made by the commission. In consequence, the remaining stages have to be moved forward to take account of the lost period and the election programme must be modified accordingly, the verdict commanded.

“We come to this conclusion with reluctance but consider it inevitable on account of the situation brought about by ECP notification. Therefore, the election programme in relation to stages 6 to 11 stand modified and will be applied in the terms that the last date for filing appeals against decisions of the Returning Officer rejecting or accepting the nomination papers will be April 10; last date for deciding appeals by the Appellate Tribunal will be on April 17; the publication of revised list of candidates will be on April 18; last date for withdrawal of candidature and publication of revised list of candidates on April 19, while the allotment of election symbol to contesting candidates will be April 20.

The ECP had categorically stated, the judgement recalled, that if it was provided with necessary aid and assistance by the executive authorities in the federation and provinces in the discharge of constitutional obligations under Article 220, the commission would be able to organise elections to the Punjab and KP assemblies fairly and under law, as required in terms of Article 218(3) of the constitution.

Rs21 billion for polls

The Supreme Court directed the federal government to release funds to the tune of Rs21 billion by April 10 for holding elections in Punjab and KP.

The commission will file a report in this regard before the court by April 11, explaining whether it has received the funds in full or in part, the ruling added.

The report will be placed before the members of the bench for consideration in chambers and if the funds have not been provided or there was a shortfall, the apex court may issue orders or directions as deemed appropriate to such person or authority as necessary, the order said.

According to the ruling, the ECP, however, will be entitled to utilise the funds in the first instance for the election to the Punjab Assembly and if there was a shortfall for election to the KP Assembly, the ECP may make an appropriate representation to this court for such consideration and orders as deemed appropriate.

The Punjab caretaker cabinet, in particular, the chief secretary and the police chief must and not later than April 10 should provide a plan acceptable to the ECP for providing sufficient personnel for election duty and security purposes.

“The Punjab government and all officials must, in discharge of constitutional and legal duties and responsibilities, will proactively provide all aid and assistance to ECP for holding and conduct of election[s],” the judgement added.

The federal government must, in exercise of its powers and position in terms of Article 243(1) of the Constitution and in discharge of its constitutional duties under Article 148(3) and 220, will provide aid and assistance to the commission.

According to the judgement, the federal government should also make available all necessary personnel, either from the armed forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the government, as required by the commission. In this regard, the federal government must forthwith, and not later than April 17 provide a plan acceptable to ECP, the order required.

In case of failure, the verdict cautioned, the federal or the Punjab caretaker governments in providing aid and assistance to the ECP, in particular, to comply with what has been set out, the election watchdog may make an appropriate representation to the Supreme Court for such consideration and orders as deemed appropriate.

In a comment on the ‘4-3’ judgement authored by Justice Mansoor Ali Shah, the ruling said that the position as claimed by the learned Judges in minority “is erroneous and not sustainable in law”.

Published in Dawn, April 5th, 2023

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