ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday appreciated the federal government and the Election Commission of Pakistan (ECP) for taking the current legal proceedings on holding of May 14 polls seriously, unlike past when they objected to what constitutes the majority decision and demanded the formation of full court on the matter.

Heading a three-judge Supreme Court bench that had taken up ECP’s petition seeking to revisit the April 4 verdict of fixing May 14 elections date for the Punjab Assembly, CJP Bandial wondered, “Why the ECP did not raise the points which it has now raised in its review petition?”

“It seems the petitioner then was motivated with other considerations,” he remarked.

The observation came when ECP counsel Barrister Sajeel Shaharyar Swati requested the SC to hold the proceedings only after the issuance of detailed judgement in the May 14 matter or at least provide him ample time to go through the statements filed by the respondents in the petition.

Wonders why points highlighted in review petition on May 14 polls not raised earlier

The court, however, postponed further proceedings for Wednesday.

The counsel argued that for doing complete justice as enshri­ned under Article 187 of the Constitution, no embargo on review jurisdiction of the SC could be placed under Article 188.

He emphasised that Rule 26 of the Supreme Court Rules, 1980, only dealt with “civil proceedings” and not constitutional proceedings such as the present one, he contended, adding that the civil proceedings before the court concerns only with the individual rights whereas Article 184(3) deals with ‘public’ rights. Thus, the substantive power of the Supreme Court to review its earlier decisions cannot be abridged, the counsel emphasised.

The counsel contended that Article 199 which confer wide jurisdiction on high courts to hear issues of the fundamental rights has an appellate remedy before the apex court under Article 185(3) of the Constitution. This is the reason why no review exists on judgements issued under Article 199 but no appellate power exists against the orders issued under Article 184(3) or even 184(1), he argued.

Therefore, the review must be expansively construed when dealing with public rights emanating for consideration under Article 184(3), the counsel emphasised, adding that the SC jurisdiction and powers could only be expanded, but not curtailed, under Entry 55 of the Federal Legislative List (FLL).

During the proceedings, Justice Ijaz-ul-Ahsan observed that when somebody sought the enforcement of the fundamental rights, he in fact was invoking the civil rights, adding the fundamental rights could be of an individual as well as of that of public.

However, the counsel retorted that the SC jurisdiction under Article 184(3) was not civil proceedings, arguing that individual rights not necessarily affect the rights of public at large.

“This does not prevent any individual to seek enforcement of the fundamental rights,” the CJP intervened, adding the counsel should not equate the power of the review with that of court’s power of appeal.

Justice Munib Akhtar noted that the right to have elections within 90 days was a right of all individuals rather this right was enjoyed by the electors living in Punjab and Khyber Pakhtunkhwa.

In a concise statement, the PTI through its counsel Syed Ali Zafar contended that the argument raised by the ECP in its review petition that one should ignore the provisions of the constitution while looking at the ground realities was akin to invoking the doctrine of necessity. The very argument had been used in the past to subvert the constitution but superior courts rejected it forever, he added.

The PTI pleaded before the court that the review petition seeking to revisit the judgment of April 4 was liable to be dismissed.

ECP’s fresh stance in its review petition that the election could not be held even if the aid and assistance was provided, was in direct contravention of the stance taken by the commission earlier and therefore could not be allowed.

The counsel said the ECP could not go beyond what it had categorically committed, submitted and consented before the apex court. He also reminded the SC that the only objection the ECP had to the holding of elections on May 14 to the Punjab assembly was that the necessary aid and assistance was not being provided to the commission, but otherwise it had “always” expressed its readiness to conduct the elections.

The statement argued that the apex court through its April 4 judgement did not fix the election date on its own rather the court through its earlier judgment of March 1 in the suo motu hearing had held that the elections should be held within 90 days as per the deadline stipulated in the constitution.

The PTI counsel said the ECP arguments that the SC had breached the principle of trichotomy of powers by announcing the election date was wrong.

Published in Dawn, May 24th, 2023

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