ISLAMABAD: The Supreme Court on Thursday rejected the Election Commission of Pakistan’s (ECP) request to revisit its April 4 verdict of fixing May 14 as the election date for the Punjab Assembly polls, which was prematurely dissolved by the PTI government.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, a three-judge Supreme Court bench ignored ECP’s plea that the change of election programme was the solitary domain of the commission under Section 58 of the Elections Act 2017.

Legal observers believe that the dismissal of ECP’s review petition has great significance, especially against the backdrop of pending petitions that were pouring in the Supreme Court to seek a direction for the announcement of the date for holding the general elections within 90 days after the dissolution of the national and provincial assemblies.

In a media interaction in Lahore, senior counsel Hamid Khan asked the court to take immediate cognisance of the violation of its order to hold Punjab Assembly elections on May 14 by initiating contempt proceedings against those who flouted the order.

PTI to seek contempt proceedings against watchdog

While pointing towards ECP lawyer Sajeel Sheryar Swati, Justice Munib Akhtar observed the Aug 4 order had provided a remedy to the commission that in case it was unable to conduct elections within 90 days after the dissolution of the assemblies, it could seek the court’s intervention by moving a fresh petition. The judge said in the ruling it had been held beyond any doubt that ECP could not extend the date on its own.

“It was not for ECP to (metaphorically) wring its hand and then bow under the weight of its own professed inability to persuade or cajole the executive authorities to obey the constitutional command of Article 220 and pass an unconstitutional order of pushing forward the election by several months,” the Supreme Court had said in the judgement.

However, the ECP counsel reminded the remedy provided to the commission as mentioned in the Aug 4 judgement has just been provided. The CJP observed that the Supreme Court would always intervene whenever there was a violation of the Constitution.

During the hearing, the court repeatedly asked for the glaring error in the Aug 4 judgement, but ECP counsel emphasised that holding free and fair elections was the responsibility of the commission, adding the verdict had restricted the job of ECP to hold elections within 90 days under any circumstances.

‘Cannot override a clear provision’

The counsel then went on to ask what if the commission had held the elections within the stipulated period but could not ensure free, fair and impartial polls. Justice Akhtar observed that the Con­stitution was not anyone’s turf and nobody could go beyond it. “If someone cannot abide by it then go to the court of law.”

Justice Ijazul Ahsan also observed that ECP “cannot override a clear provision” of the Constitution. The counsel argued that after amendments to sections 57 and 58 of the Elections Act 2017, the power to announce the elections rested with the ECP. The bench reminded the ECP counsel that he was arguing in the review petition in which new points could not be raised. Therefore the counsel should point out from the record about errors in the order for which a review was required.

The counsel contended that the Constitution did not give ECP the authority but rather the responsibility to conduct the elections.

In its petition, ECP had emphasised that courts interpret the law, but they do not re-write it. As per the 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 the domain of ECP.

Under no provision of the constitution or the law, the review petition argued, the Supreme Court could have taken the exercise upon itself to appoint the poll date through the April 4 order adding the constitution was an organic document, it blossoms and evolves with time.

Contempt plea against ECP

Meanwhile, the PTI announced moving a contempt application against the ECP claiming that the dismissal of the review application was a “charge sheet” against the commission. A party spokesperson said that the Supreme Court had directed to hold elections in Punjab on May 14 but ECP did not implement the order. “Now the review petition of ECP against the April 4 decision has been dismissed. So we have decided to file a contempt petition in Supreme Court against ECP,” he said.

Ikram Junaidi also contributed to this report

Published in Dawn, September 1st, 2023