The Election Commission of Pakistan (ECP) on Wednesday filed a petition in the Supreme Court to seek a review of its order directing elections in Punjab to be held on May 14, stating the ruling was beyond the apex court’s jurisdiction.
In a 14-page petition, the electoral body laid out its case against the ruling on multiple grounds, stressing that the decision should be reviewed as the judiciary lacks the “authority to give the date of elections.” The petition has yet not been fixed for hearing and has been filed with barely two weeks remaining until the polls are slated to be held.
The petition noted that the Constitution had clearly defined the ambit and scope of judicial intervention under Article 175(2) of the Constitution, which specifies that courts’ jurisdiction is restricted by the Constitution and law. It said that while the Constitution granted special powers to the apex court to judicially review decisions of public bodies, it does not permit it to issues its own decisions. “The superior courts can define the contours within which the power (which vests in the public bodies) is or is to be exercised. At no instance can the superior courts take upon themselves the role of the public body. With utmost deference, the appointing of the date for the election is not the mandate of superior courts under the Constitution,” it said, noting this power existed elsewhere. Stressing that the court had “disregarded its constitutional jurisdiction and assumed upon itself the role of a public body in giving a date [for elections],” it said further intervention was needed to correct the court’s error.
Referring to the trichotomy of power, the petition said division of power between different organs of the state was necessary for the smooth and efficient functioning of the country. “This well-embedded constitutional concept isolates the three organs from interfering and treading into the domain of the other. The judicial institution has been conferred the power to judicially review the actions and decisions of the executive while at the same time being restrained from exercising the executive authority itself,” it said, emphasizing that announcing a date for general elections did not fall under the court’s purview. “Therefore the impugned order under review, humbly submitted, has breached the salient principle of the trichotomy of powers and thus is not sustainable,” it stated.
Maintaining that it was the ECP’s sole authority to conduct free, just, and fair elections in accordance with law, the body noted that the governor gave a date for general elections if a provincial assembly were dissolved, while the president could give it otherwise. “But for a change of the date, the Constitution is silent, and Section 58 of the Election Act, 2017, comes into play,” it said, referring to a law that allows the ECP to alter the election program at any given time.
Referring to the Supreme Court’s March 1 order for holding elections to the Punjab and KP assemblies within 90 days, it said: “The Hon’ble Supreme Court identified an authority for announcing the date for the general elections (i.e. the president) by interpreting the Constitution as well as the law and restraining itself from appointing a poll date, keeping in view the well-entrenched principle of trichotomy of powers. The order under review [April 4], submitted with utmost humility, also goes contrary to the spirit of the order dated 01.03.2023 where this august court found the repository of the power being president under section 57 of the Constitution to appoint a poll date for general elections where the assemblies stood dissolved by efflux of 48 hours. It is also not conceivable why this Hon’ble Court took upon itself the task of appointing a poll date which certainly is not the constitutional function, respectfully submitted, assigned to the judicial organ of the state.”
Urging the SC to exercise “judicial restraint,” it reiterated the court should not have fixed a date for polls, as this made the ECP “virtually toothless.” If the ECP doesn’t have necessary authority, it warned, “the honesty, fairness, and above all, the integrity of the elections cannot be ensured.”
The ECP petition also noted that it could only perform its constitutional duties and functions if the requisite aid was provided by the federation and the provinces. In the current instance, it noted, neither its security concerns, nor the necessary funds, had been addressed. “In an environment that is politically polarized and political parties are at loggerheads to the extent that they are intolerant of each other’s existence, and the security risks are dire, the holding of general elections would not be free, fair, and honest,” it said.
“It is these factors that prevailed upon the commission while passing the order impugned in the original proceedings—something which this Hon’ble Court apparently did not consider in its true perspective. Without a secure environment, no election can be held in a free and fair manner nor can the consequent election results be considered sanctified,” it noted.
The ECP also stressed that no single provision of the Constitution could override another provision. “In case of any conflict, the different provisions of the Constitution have to be harmonized and read together and in case of conflict the provision containing a lesser right has to yield in favor of the provision containing a higher right/norm,” it stated, adding that Article 218(3) of the Constitution—granting the ECP the authority to organize and conduct elections—was a “higher norm” than Article 224, which calls for polls within 90 days of an assembly’s dissolution.
“The duty to hold elections within 90 days is a constitutional imperative and command which cannot and should not be ignored but at the same time the duty to hold elections honestly, freely, and fairly is fundamental to the very existence of the constitutional democracy; without such fairness, the very spirit of the Constitution itself shall stand defeated,” it said. It also highlighted that free and fair elections to the National Assembly could not be possible if an elected government were already place in Punjab.
Explaining that Punjab and KP jointly held 228 of the 326 seats in the National Assembly, the ECP said free and fair elections required “government machinery which is non-partisan and has no inclination towards any political party.” If governments for these provinces were already in place ahead of National Assembly polls, it said, “sanctity, objectivity, and fairness of the elections” of polls would be compromised.