ISLAMABAD: A day after May 14, the date set by the Supreme Court for Punjab Assembly elections, the top court will take up a review petition of the Election Commission of Pakistan (ECP) seeking to revisit its April 4 verdict.

The apex court in its landmark decision last month had set May 14 for the conduct of Punjab Assembly elections after disregarding the ECP’s appointed date of Oct 8. In the same decision, the court stated that since the matter of Khyber Pakhtunkhwa (KP) Assembly elections had not been adjudicated upon, the petitioner had the permission to approach any forum as deemed appropriate for seeking relief.

Moved through Advocate Sajeel Sheryar Swati, the ECP in its review petition requested the court to recall its April 4 judgement in the interest of justice, arguing that it was per incuriam (lack of jurisdiction) to the constitution. Of the 326 National Assembly seats, 173 and 55 seats are from Punjab and KP, respectively, indicating 72 per cent of the total strength, according to the ECP review petition.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, the bench also comprising Justice Ijazul Ahsan and Justice Munib Akhtar will begin hearing the review petition, which agitates that the change of election programme is the solitary domain of the ECP under Section 58 of the Elections Act, 2017.

ECP says change in election programme is its ‘solitary domain’ under Section 58 of Elections Act

Since general elections to the National Assembly are due in near future, with its term completing in August 2023, the ground realities need to be considered in true perspective, according to the petition.

The ECP says it requires the government machinery that is non-partisan and has no inclination towards any political party to perform its constitutional duties to conduct the general elections honestly, justly, fairly and in accordance with law. If elections to the NA are held while permanent governments already in place in Punjab and KP, the sanctity, objectivity and fairness of elections to 72pc seats of the national assembly would inevitably be compromised, the petition contends.

The review petition says the question of harmonising Articles 218(3) and 224 as well as the provisions of the Elections Act, 1997 is of the first impression and has not been dealt with by superior courts. It emphasises that the ECP has even been guarded under Article 222 from any intervention in clear words that its power cannot be diluted, whittled away or abridged through parliamentary intervention.

Instead of Section 58 of the Elections Act, the Supreme Court in its order relied upon Section 57 in order to designate President Arif Alvi as authority for fixing the date where the assemblies stood dissolved by efflux of time, the ECP recalls.

The petition reminds the court that legislature while enacting Sections 57 and 58 of the Elections Act was cognisant of the fact that situations may arise due to which elections dates are required to be changed.

Citing the 2008 general elections, the petition argues that the ECP keeping in view the exigency and requirement of that time had delayed polls for 40 days. That is why the legislature while enacting Section 58 put overriding phrase “Notwithstanding anything contained in section 57”, at the very start of Section 58(1), knowing it fully well that Section 57 enumerates something that is contrary to what Section 58 would consider as permissible.

The petition emphasises that the courts interpret the law, but they do not rewrite it. As per literal interpretation of the provision of Section 58, change of the election programme or giving a fresh programme — of which poll date is an essential component or stage — is ECP’s domain. Thus, Section 58 overrides anything contained in Section 57 of the Elections Act and is divorced, in its essence, from Section 57. That is a simple, plain and clear effect of the overriding clause and as per the established jurisprudence of the country, the overriding clause takes precedence over the provision containing a contrary view, the review petition maintains.

It argues that the SC under no provision of the constitution or the law could have taken the exercise upon itself to appoint the poll date through April 4 order. The appointing of date or changing it is an executive exercise, and certainly not a judicial exercise, it adds.

Published in Dawn, May 13th, 2023