Wednesday April 24, 2024

An opportunity for review

By Malik Muhammad Ashraf
May 09, 2023

The Election Commission of Pakistan has filed a review petition against the SC order of April 4 fixing May 14 as the date for election in Punjab as well as the announcement of the relevant schedule for holding it.

In the review petition it has been pointed out that fixing a date for election is not the mandate of the SC under the constitution and the power to do that exists somewhere else. The petition further says that the framers of the constitution did not grant the courts the jurisdiction to assume the role of public bodies and that, while passing the order under review, the court disregarded its constitutional jurisdiction necessitating correction of an error which has effectively changed the settled constitutional jurisprudence of the country.

It is not tenable as to why the ECP took so long to file the review petition which should have been done immediately after the verdict was announced by the three-member bench headed by the CJ. But as is said: it is never too late. The petition has been filed under Article 188 of the constitution which says that “The Supreme Court shall have power, subject to provisions of any Act of the Majlis-e-Shoora (parliament) and of any rules made by the Supreme Court to review any judgment pronounced or any order made by it.”

The position taken by the ECP is absolutely right. The SC while delivering the verdict violated Election Act, 2017 which assigns the responsibility of announcing the date of election to the president after consultation with the ECP and makes it obligatory on the ECP to announce the schedule of elections. The Act also empowers the ECP to change the announced date by recording the reasons for such a change.

In this regard, sections 57 and 58 of the Act are relevant. Perhaps it would be in order to quote the texts of both these sections of the Act for the benefit of the readers. Section 57(1) says: “The president shall announce the date or dates of the general elections after consultation with the commission”. Section 58 of the Election Act, 2017 reads as: “Notwithstanding anything contained in Section 57, the commission may, at any time after the issue of the notification under sub-section (1) of that section, make such alterations in the Election Programme announced in that notification for the different stages of the election or may issue a fresh Election Programme as may, in its opinion to be recorded in writing, be necessary for the purposes of this Act”.

The ECP acted in conformity with the first verdict of the SC which it delivered after taking suo-motu notice of the delay in elections in Punjab. Para 14 of the order said: “The ECP would act in conformity with sections (571) and 58 of the Election Act 2017.”

The ECP fully complied with the SC decision. It did consult the president who announced April 30 as the election date as per the requirement of Section 57(1) of the Election Act. However, when the ECP did not receive the required support from security institutions to perform duty at the polling stations as well as the finances required for election, it justifiably postponed the elections in terms of the powers conferred on it by Section 58 of the Election Act 2017.

In light of the above facts, the SC verdict of April 4, in which it held that the postponement of the election date by the ECP was unconstitutional, is bereft of any legal or constitutional basis. The ECP’s decision to postpone the election date was not only legal but was also covered by Article 254 of the constitution which reads: “When any act or thing is required by the constitution to be done within a particular period and it is not done within that period, the doing of that act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”

As is evident, the action of the ECP enjoyed the protection of Section 58 of the Election Act as well as Article 254 of the constitution. Therefore, it could not be declared as unconstitutional. The ECP acted according to the Election Act, 2017 which is an act of parliament and no court can give any verdict against its clauses unless the Act itself is declared against the constitution. The SC while announcing the date of election and announcing its schedule seemed to have taken upon itself powers of another constitutional body. Judges – whether of the lower courts or the highest court – are bound to adjudicate in conformity with the law and the constitution.

Thus, it seems the SC went beyond its domain of constitutional powers while rendering its opinion on Article 63-A of the constitution which some legal experts say amounted to rewriting the constitution. They also feel that, in doing so, the court encroached upon the powers of parliament.

As if the foregoing indiscretions were not enough, there was another unprecedented step when the apex court stayed the implementation of the Supreme Court Practice and Procedure Bill 2023, even before it received the nod of approval from the parliament. Courts cannot prevent parliament from enacting a law. What they can do is take a look at a law to see whether it is in conformity with the constitution or not after it is passed by parliament.

The cumulative effect this judicial overreach has had is that it has created an ambience of confrontation between the judiciary and parliament which has not only rejected the verdict of the SC in regard to the election date but has also taken a strong exception to the stay order given on the Supreme Court Practice and Procedure Bill, 2023.

The permeating situation does not augur well for the country and its future as a democratic entity. Either parliament or the judiciary will have to step back to defuse the situation. In my view the review petition filed by ECP has provided a good opportunity for an escape route to the judiciary by reviewing its verdicts. The judicial history of the world is replete with instances where the judiciary has rectified wrong decisions: the Supreme Court of the US is reported to have reviewed 146 such cases.

The writer is a freelance

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