Formation of commission job of executive not judiciary, says CJP

‘SC being asked to take suo moto action on Panama Leaks; system should continue despite flaws; sometimes judiciary had to compromise for democracy; judiciary had serious reservations on 21st Amendment but had to compromise to save democracy’

ISLAMABAD: Chief Justice Anwar Zaheer Jamali on Tuesday observed that the formation of a commission is the function of the executive and not the apex court.

The chief justice was heading a three-member bench of the apex court hearing the appeal filed by the Sindh government against the Sindh High Court (SHC) judgment, which declared the election of mayor, deputy mayor, chairman and vice-chairman of the councils through a show of hands as void.

During the hearing, the chief justice said that they had been asked to form a commission or take suo moto on the Panama Leaks issue. However, he said that it is the domain of the executive to constitute a commission.

The chief justice said that they had their own jurisdiction and functions, hence the responsibility lies with the executive to constitute a commission but not with the court. Similarly, the chief justice said that an investigation is also the domain of the executive and does not fall in the functions of the judiciary.

Justice Jamali said that a crippled system is being run with the help of crutches, but clarified that he was not targeting any person or any institution but was saying that the whole system had flaws. He said despite its flaws, the system should continue. He said sometimes the judiciary also makes compromises for the sake of the system. He said the judiciary had serious reservations over the 21st Amendment in the Constitution but compromised to save democracy.

Dr Babar Awan, counsel for the Pakistan People’s Party, while justifying the election through a show of hands, argued that the show of hand mode was adopted for the election of mayor and deputy mayor to ensure transparency. The chief justice, however, questioned as to how transparency could be ensured when the census, which was due in 2008, could not be held. The chief justice said that census is the most important aspect for ensuring transparency in the election.

Justice Jamali said that political parties should resolve the political issues amicably, instead of approaching the court.Farooq H Naek, counsel for the Sindh government, submitted that democracy without the rule of law is the rule of mob. He said that an amendment should be made in the Constitution for the representation of all segments in parliament. The chief justice said that amendments were made to remove the flaws, however, sometimes amendments cause damage. He observed that the winning party uses the heavy mandate to bulldoze the system, adding the Constitution was for all times to come.

Justice Jamali observed that amendments in the Sindh Local Government Act 2013 were made to change the mode of election from secret ballot to show of hands after the election schedule was announced.

Farooq H Naek replied that the local government elections in Sindh were held in three phases. The last direct election of local bodies was concluded on December 3, 2015.

During the hearing, Saeed Ghani of the PPP told the court that the Election Commission of Pakistan (ECP) had issued a notice for the mayoral elections on January 14, 2015 after which the provincial government legislated for show of hands in the elections. However, the MQM’s Waseem Akhtar contended that his party was not taken into confidence over the legislation.

The chief justice observed it seems to be the issue of egoism because the matter could be resolved if both the political parties have consultative process to address the issue, adding that if show of hands is the best system for mayoral elections then why the prime minister should not be elected through the system.

The court was informed that Barrister Farogh Nasim could not appear as he was hospitalised for kidney disease.

Meanwhile, the court adjourned the hearing till April 14 and asked the MQM leaders to arrange the counsel by that time. The ECP also filed its written statement with the court on the matter and the court in its order directed that the copies of the ECP’s written statement be provided to the parties in the matter.

The ECP in its statement submitted before the court that it is mandated by the Constitution to conduct, organise and make arrangements to ensure fair, just and honest election. It stated that it conducted the local government election in KP in accordance with the Provincial Local Government Act 2013.

It further submitted that the said election and KP Local Government Act was not challenged before any court of law nor before the commission. In fact, after the passage of the KP Local Government Act 2013, the commission proceeded with the conduct of election in KP, it submitted, adding that the delimitation of constituencies was conducted by the government of KP in respect of local government elections, which was also not challenged before any forum.