ISLAMABAD: Chief Justice Umar Ata Bandial asked from the Election Commission of Pakistan (ECP) why it didn’t advise President Arif Alvi regarding holding polls across the country on one day.
A three-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, on Wednesday, heard the review petition of the ECP.
Justice Bandial told Sajeel Sheryar Swati, representing the ECP, that he had admitted before this Court that if funds and security were provided then the Commission was ready to hold election, adding you have also given the categorical statement in this respect. He said earlier the stance of the ECP and government was that the 7-member rendered the verdict, and demanded that full court hear the matter, as their interest was somewhere else.
The government also and the ruling parties raised objections on the members of the bench. “It is very easy to say that you have missed the boat.” We have to decide in accordance with the constitution and law, he added.
The CJP said that the apex court’s judgment was that the commission consult the President and the Governor for fixation of elections dates in the Punjab and Khyber-Pakhtunkhwa.
The chief justice inquired from Swati after how long the ECP wrote to the President to consult him under Section 57 of the Election Act. What did you write to the President, he questioned. He said the ECP should have brought all these issues in the President’s knowledge, including holding of elections on same day in the country. “We have tried to make ECP independent.”
The chief justice further said the ECP did not tell how to implement Article 224 and what are its functions and powers under Article 218. What the experience of 1970s was. He said all these aspects should have been brought to the knowledge of the President. The commission did not mention even a single ground reality, but it now brought new points before the Court.
The chief justice said when the constitution has given jurisdiction to the commission then it has to be applied with open eyes, “but still we hear that it saying that these are law points. These things are now the past.”
At the outset, the attorney general informed the bench that the federation has raised these points in its reply and civil miscellaneous application about holding of elections across the country simultaneously.
However, the chief justice said that his and the ruling parties’ counsels’ arguments were on the maintainability of the petitions. It was contended that four judges had dismissed the petitions. He said they were very happy that the federation has raised substantive legal points in the concise statement.
Justice Bandial said they (the judges) are sitting to hear them and if there will be any reasonable point then they will consider it and decide. He said now the federation and the ECP have raised points that expansion view be taken for hearing the review, and have cited a judgment of the Indian Supreme Court, and 1962 judgment of the Supreme Court of Pakistan.
“We don’t want to use the past against the government.” He said they are sitting to please Allah, the Almighty and for the service of mankind. We are sitting here after rendering several sacrifices.” “We have greeted you with good gesture: good to see you.”
The chief justice addressing the AGP said, in front of the Supreme Court gate and in our neighbourhood (the Parliament), harsh language was used against the members of this bench, and asked the AGP to inform them not to do this.
He asked the attorney general so please give no explanation. “We are sitting here with an open mind, and not with preconceived notion and work for a higher ideal.” The chief justice also told the attorney general that whoever told you for clarification tell them “we are sitting with an open mind”, and added, “Don’t give explanation.”
Justice Bandial clarified: “Mercedes [in which, Imran Khan was brought to the Supreme Court] was not provided by the Court.” I don’t use Mercedes, he said adding the police themselves arranged the Mercedes.
The attorney general said different meaning is taken out of the statements made before the court.
Justice Munib inquired from the Election Commission’s counsel, whether after 2020 Indian Supreme Court constituted larger bench for hearing of review petition, and what was the final decision in that case. Sajeel Sheryar Swati said that he has no further information.
Justice Munib then questioned what is the legal test or standard for expanding the scope of review. What is the required standard for hearing review under Article 184(3)?
Swati argued that he has been an ardent supporter of the expansion of review scope, adding it should not be curtailed on technical basis. The Supreme Court is the arbiter justice and doles justice not only in accordance with the constitution and the law but also in view of the ground realities and the circumstances.
Justice Ijaz said that Supreme Court itself has framed the rules that grant the power of review. He questioned should the review power is akin to an appeal. The chief justice remarked as the use of Article 184 (3) has increased, and as there is no remedy except the review, which has limited scope; therefore, one remedy could be to expand its scope.
Swati argued that the review scope was expanded in judges’ pension case, Houbara bustard, and Anti-Terrorism law, and in sacked employees review the court read into Article 186. The case was adjourned until today (Thursday).
Copyright Business Recorder, 2023
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