The three member bench of apex court headed by CJ Qazi Faez Isa and comprising Justice Athar Minallah and justice Amin-ud-Din while disposing off petitions praying the court to order holding of elections within ninety days made some very significant observations regarding powers of the SC. The order issued by the court noted that the country was put through anxiety by not giving an election date and there were also fears that elections won’t take place at all. The president’s letter and the ECP stance placed the Supreme Court in an awkward position as neither the constitution nor any law empowered the Supreme Court to determine any election date. The SC was unnecessarily involved in the issue.
While endorsing the agreement reached between the President and the ECP on holding the elections on 8th February 2024 and ordering the government to conduct the elections on the agreed the court order further said that the holder of any constitutional office and the constitutional body which includes the President and the ECP must do what the constitution requires them to do. The CJP further stated that the court should not adopt the role of (other) institutions, adding that the SC only facilitated the ECP and president in reaching a conclusion.
In unequivocal terms the bench reiterated two things that the court should not interfere in the role of other institutions and that fixing the date for elections was not the responsibility of the court as no law or the constitution authorised it to do so.
Viewed in the backdrop of the foregoing SC observations there is no doubt left in concluding that the verdict of the SC bench headed by former CJ Atta Bandial in fixing 14 May as election date by taking suo-motu notice in regards to election date in Punjab lacked constitutional legitimacy. All the CJs who exercised this power which according to Article 184(3) vested in the Supreme Court actually violated the constitution.
Mr.Babar Sattar who is now an honourable judge of the Islamabad High Court used to write for daily The News on political and legal issues. He in an article published in that paper on 19 April 2020 in the backdrop of suo-motu notice taken by CJ Gulzar Ahmed regarding Covid-19 policy of the PTI regime in which he hurled scathing criticism on the then health Advisor Dr.Zafar Mirza observed “It was not well received for three reasons. One, it brought back haunting memories from the tenures of CJPs Iftikhar Chaudhry and Saqib Nisar who used suo-motu powers to usurp executive authority and subjected those appearing before the SC to ridicule while aggrandising personal power. Two, with the perch of populism already occupied by the PTI regime, there is no public space for a populist court at this time. And three, with a decade of judicial overreach with no visible benefit accruing to the people in whose name the power is exercised, the need to structure suo-motu power is writ large. CJPs Chaudhry Iftikhar and Nisar did tremendous damage to the majesty of law, to certainty as an ideal of rule of law, to the idea of judges being neutral arbiters of the law and to basic civility during judicial proceedings. Their imperious ways hurt the tri-chotomy of power in Pakistan, public support for elected institutions and democracy, our jurisprudence and economy. Article 184(3) vests powers in the SC. Why then do they end up being driven by an incumbent CJP’s beliefs, interests or whims”?
In regards to elections in Punjab, it was the power and mandate of the Election Commission to fix the date for elections and even change the schedule of already announced elections under Election Act 2017. The contention in the verdict that ECP did not have powers to change the date of elections was absolutely misleading. Section 58 of the Election Act 2017 reads “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”
That is exactly what the ECP did after briefings by the Ministry of Finance and Defence in regards to financial provision and non-availability of security personnel to perform election duty. Article 254 of the constitution covered the action of the ECP in these words “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 the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period “
So what the ECP did was in accordance with the law and the constitution. Actually the judges were guilty of pummeling the Election Act 2017 and ignoring Article 254. Article 224 prescribing limit of ninety days needs to be read with Article 254 and the section 58 of the Election Act 2017. The verdict, therefore, was a manipulative justice.
Interestingly the Atta Bandial led bench emphasised on going strictly by Article 224 (2) which prescribes holding of elections within 90 days after dissolution of the Assembly but itself violated it by giving 14 May as the date for election in Punjab. The assembly was dissolved on 14 January and according to Article 224(2) they elections should have been held by 14 April.
Now the verdict given by the SC bench headed by CJ Qazi Faez Isa has removed all doubts about which institution has the power to fix the date of elections and what is the role of the President in this regard. It has also through its decision on Supreme Court Practice and Procedure Act resolved the issue of exercise of suo-motu powers which will go a long way in rectifying the wrongs done by different CJs in the past as well as closed the avenues of decisions made according to the whims and likes of one man. The decision has also revived the true sense and spirit of the Article 184(3).