Punjab Polls: SC judge terms ECP council’s arguments ‘interesting’

ISLAMABAD: Justice Munib Akhtar of the Supreme Court on Tuesday termed the arguments of the Election Commission of Pakistan (ECP) counsel “interesting” and said that the points raised for review will open the gateway for more arguments.

The judge’s remarks came during the hearing of the electoral body’s review petition challenging the decision of the apex court to conduct Punjab polls on May 14.

A three-member bench — headed by Chief Justice Umar Ata Bandial and comprising Justice Ijaz Ul Ahsan and Justice Munib Akhtar — heard the case.

Today’s hearing

At the outset of the hearing, ECP’s legal counsel Advocate Sajeel Shehryar Swati took to the rostrum.

He shared that the responses of the federal and Punjab governments had been received; however, Pakistan Tehreek-e-Insaf (PTI) had not submitted a written reply.

“No reply has been provided to me in advance,” he said, asking to court to give him some time to review these.

The bench directed Swati to first explain how new grounds could be accepted in the review petition.

“The Supreme Court's rules have been made by the Supreme Court itself in adherence to the Constitution and it cannot exercise powers outside the criminal and civil jurisdiction,” Advocate Swati responded.

He further said that Article 188 which pertains to the SC’s authority to review its judgement does not limit, but rather extends its powers to review a petition.

During the hearing, the ECP advocate further argued as to why the court should allow “new” arguments to be presented.

Asking Swati to elaborate further, Justice Munib Akhtar remarked: “You are unable to differentiate between public interest and public rights.”

“Jurisdiction to review a petition is not limited in constitutional cases,” Swati said.

At this, Justice Ahsan pointed out that approaching the court for fundamental rights was, in fact, a civil case. However, the ECP lawyer objected to this observation, saying that proceedings under Article 184-3 are not of civil nature.

Amidst this to-and-fro, Chief Justice Bandial asked: “According to you, the jurisdiction of review is not limited but the procedure is?”

On the other hand, Justice Munib wondered why the Supreme Court should determine its jurisdiction for the review petition.

“You are saying that if there is an appeal that comes through the high court, the jurisdiction [of the apex court] is limited; however, in the case of a review petition it is not.”

He then wondered: “Why should the Supreme Court create ambiguity in its jurisdiction?”

Advocate Swati responded by saying that since there was no right of appeal in Article 184-3, the scope of the review could not be limited.

He maintained that this was the first case of its kind and that despite reading more than 24 decisions but none mentioned the limit of review.

At this, Justice Munib wondered: “What if the framers of the Constitution limited the scope of the review so as not to go beyond the actual case? Why don't we call it a retrial of the same case instead of a review?”

In response to the bench’s observation that the ECP counsel was implying that a revision petition is equivalent to a main appeal, Advocate Swati cited the case of an Indian court.

However, the CJP said, that it sounded as though the ECP lawyer wanted the court to treat the petition as both a review and an actual case.

The CJP then complimented the government and the interim Punjab governments’ “serious” responses.

The CJP further said that going forward, the petitioners should expect similar questions.

“Why were these points not raised before?”

Swati responded by saying that he would share the reasons for not raising these points earlier and instead asked the bench to share the detailed reasons for its April 4 decision.

Justice Munib responded that the court would give detailed reasons.

Moreover, he too praised the diligence of the ECP counsel and said: “The question raised for review will open the gateway for your arguments.

“To me, the proposals regarding widening the scope of the review are quite interesting.”

The Supreme Court then adjourned the hearing of the case till 12:15pm tomorrow (Wednesday).

PTI's response

During today’s hearing, PTI submitted its response to the ECP’s review petition, asking the apex court to reject it.

In its response, PTI contended that the Election Commission had raised new points in the review petition, which “could not be done”.

“The commission wants the Supreme Court to revive the doctrine of necessity, which cannot be,” it stated.

It further contended that Article 224 — which calls for holding elections of an assembly within 60 days of its dissolution — could not be ignored in light of Article 218.

It added that the Constitution didn’t make it mandatory to hold all the elections simultaneously nor could the Supreme Court could amend the Constitution as per the ECP’s wishes.

‘Such dangerous arguments have been used before to break the Constitution, and the court has always rejected them,” it concluded.

The petition

In its petition, the electoral body has further maintained while such power exists elsewhere under the Constitution, it does not lie in a court of law and there is inherent wisdom in this division of power.

The electoral watchdog had further submitted that under the Constitution, the power of the announcement of the date for the general elections is vested in bodies other than any judicial institution, and, therefore, the impugned order under review, has breached the salient principle of the trichotomy of powers and thus is not sustainable.

Elections — principally a domain of the election commission under Article 218(3) of the Constitution read with other provisions of the Constitution, the conduct of elections is the sole responsibility of the Election Commission of Pakistan, the ECP had contended.

The ECP had submitted that in the presence of an elected government in Punjab, the general elections to the National Assembly cannot be conducted fairly, justly and in accordance with the reasons that the elected government in Punjab, for instance, will surely be able to influence the outcome of the general elections to the National Assembly, with all the resources at its disposal.

“Therefore, fair elections cannot take place in the presence of an elected government in Punjab”, the review petition had stated adding that the voter/electorate is likely to vote in favour of the candidates of the political party which has the elected government in Punjab.

Meanwhile, the federal government and Punjab Government on Monday filed their replies, adopting the stance taken by the ECP in its review petition.