The Election Commission of Pakistan has filed a petition with the Supreme Court asking it to reconsider its decision to overturn the Punjab Poll Commission’s authority to release election schedules.
On Wednesday, the ECP petitioned the Supreme Court in ISLAMABAD to review its ruling to hold elections in Punjab on May 14.
In its petition, the ECP argued that Section 58 of the Elections Act, 2017 gave it exclusive authority over alterations to poll schedules.
The panel further stated that the order violated the law, precedent, and the Constitution “per incuriam” (without regard to the law or the facts).
The ECP said that the Supreme Court “should have exercised judicial restraint and could have apportioned responsibility to the commission.”
The administration had been trying to prolong the provincial votes citing security difficulties and the economic crisis, but the Supreme Court deemed the Election Commission of Pakistan’s decision to postpone the elections in Punjab until October as “unconstitutional” last month.
The provincial elections would be held on May 14 as well, according to a three-judge bench presided over by Chief Justice of Pakistan Umar Ata Bandial and including Justice Munib Akhtar and Justice Ijazul Ahsan.
PTI leader and former prime minister Imran Khan criticized the Election Commission of Pakistan (ECP) on March 22 for postponing provincial assembly elections in strategically pivotal Punjab province by more than five months due to the deteriorating security situation in the cash-starved country.
After being removed from office in a vote of no confidence in April, Imran has been pushing for early elections ever since.
As leader of the ruling coalition, Prime Minister Shehbaz Sharif has refused to budge from his insistence that elections be held all at once later this year.
In its appeal, the election monitor argued that the court had no authority to schedule elections on its own will, citing various provisions of the Constitution and other laws.
The scope of the authority (which is delegated to the government) can be defined by the higher courts. The superior courts may never assume the functions of the government. It went on to say, “With all due respect, the Constitution does not give superior courts the authority to set the date for the election.”
It went on to say that such authority did not reside in a court of law, but rather somewhere else in the Constitution.
The panel added that “appointing of date or changing it, is an executive exercise, and certainly not a judicial exercise.”
“The ECP appears to simply have no choice, given the strict timeline to meet for the elections, but to accept as a fate accompli, a security plan which may be compromising the integrity, honesty, and fairness of the elections,” the petition continued.
A “strong and empowered commission” was also emphasized by the election watchdog.
In its April 4 order, the SC “has actually divested the powers of the commission to itself,” rendering the ECP “virtually toothless,” and “disregarding its constitutional jurisdiction,” according to the ECP.
The ECP noted in the plea, “It is not suggested that Article 254 of the Constitution should be used to stultify the constitutional imperative of holding elections within 90 days.”
The “trichotomy of power” was also brought up in the appeal.
It maintained that the separation of powers between the several branches of government was the “hallmark of the Constitution” and a “essential sine qua non” for the country’s well-being.
This deeply ingrained constitutional principle prevents any one of the three organs from intruding on the responsibilities of the others. It pointed out that the judiciary “has been given the authority to review the executive’s actions and decisions in court but is prohibited from exercising that authority itself.”
In its March 1 order regarding the holding of elections to the Punjab and Khyber-Pakhtunkhwa assemblies within 90 days, the apex court cited Section 57 of the Elections Act, 2017 to designate the president as authority for the appointment of date where the assemblies stood dissolved by efflux of time. The ECP argued that this section of the law gave the president the authority to appoint the date of elections.
“The Hon’ble Supreme Court identified an authority for announcing the date for the general elections (i.e. the president) by interpreting the Constitution and the law and refraining itself from appointing a poll date, keeping in mind the well-entrenched principle of trichotomy of powers,” the statement continued.
With all due respect, the order under review [April 4] also runs counter to the spirit of the order dated 01.03.2023 in which this honorable court found the repository of the power to be the president under Section 57 of the Constitution to appoint a poll[s] date for general elections where the assemblies stood dissolved by efflux of 48 hours. To add insult to injury, the commission argued that “it is also inconceivable why this Hon’ble Court took upon itself the task of appointing a poll[s] date, which certainly is not the constitutional function, respectfully submitted, assigned to the judicial organ of the state.”
The watchdog organization for the elections formally petitioned the Supreme Court to “accept the instant review petition by revisiting, reviewing, reconsidering, and recalling its April 4 order.”
