SC serves notice on ECP over delay in Punjab Polls

-Top Court seeks assurances from govt, PTI to support fair and free
-Governors of two Provinces also issued notices through Chief Secretary
-Justices Mansoor Shah, Jamal Mandokhail of SC call for revisiting CJP’s ‘one-man show’ power
-When one person has too much power, there is a risk that Institution may become autocratic, object the two Judges
-Both believe Court has been ushered into a political thicket by Suo Motu proceedings

Staff Report

ISLAMABAD: Issuing notices to the Election Commission of Pakistan (ECP) for dragging feet on polls in Punjab, the Su-preme Court of Pakistan Monday sought guarantees from the government and Pakistan Tehreek-e-Insaf (PTI) to bury the hatchet for free, fair, and transparent elections.
These developments came to the fore during the hearing of the plea regarding the date for general elections in Pun-jab and Khyber Pakhtunkhwa yesterday (Monday).
A five-member larger bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, heard the plea. The court also issued notices to governors of two provinces through the chief secretary.
“The court only needs assurance from both sides. The elections should be peaceful, transparent, and fair. If the gov-ernment and PTI want elections, they have to give assurances,” Chief Justice Umar Ata Bandial said.
He added the parties would decide what those assurances would be like not the court. “The parties should evaluate what is and what isn’t good for the public. Pakistan’s Constitution was not made for only setting up or toppling the governments,” he remarked suggesting it was more than that.
The SC’s top judge said that the Constitution was interpreted while keeping the life and happiness of people in mind. “The current situation is alarming. Elections can only be held when the conditions are favourable,” he said and insisted that one could not run away from the facts.
The chief justice maintained that the country’s atmosphere had turned poisonous due to political intolerance. “The present political situation is terrible. Politicians are at each other’s throats,” he said.
Justice Bandial asked both the government and the Imran Khan-led party to decide what is best for Pakistan.
Sharing his remarks regarding the ECP, the top judge said that it was merely an institution. “The election commission requires facilitation and support for [conducting] polls.” Apart from sending notices to all parties mentioned in the PTI’s plea, the apex court has also sent a notice to the gov-ernors of both provinces through chief secretaries The chief justice remarked that polls were essential for the functioning of the country’s governance system. “The elec-tion process should be transparent and peaceful. Article 218 calls for transparency of elections.”

Justice Bandial also questioned the performance of leaders in the country. “What have our leaders done so far?”

PTI’s counsel Barrister Ali Zafar, during his arguments, said that the objective of the caretaker government was to hold elections within 90 days. “The polls cannot be delayed for five months after the deadline.”

Apart from the CJP, the bench included Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan and Jus-tice Jamal Khan Mandokhail.

The PTI moved the apex court following the ECP decision to postpone the Punjab polls from April 30 to October 8 after financial and security authorities expressed their inability to support the electoral process.

In light of the Supreme Court’s split ruling last month, President Arif Alvi announced the date for the Punjab polls after consulting with the ECP.

Weighing in, Justice Ijazul Hassan said the ECP first said it was unable to fix a date for elections and later it postponed the date (given by the president) in total contradiction to its earlier position.

Justice Munib Akhtar said the Supreme Court’s decision was undersigned by all five judges. “It is not like that there are two Supreme Court decisions. Dissenting notes in judgements are not out of ordinary.”

Meanwhile, the additional attorney-general of Pakistan requested the court to adjourn the case for two to three days. However, the request was rejected by the court.

The additional attorney-general said that attorney-general Barrister Shehzad Elahi had resigned from the post. He pleaded with the court to adjourn the case until the appointment of a new attorney-general.

Responding to this, the Chief Justice said that the nominated attorney-general had visited him earlier in the day and would join by today.

Justice Bandial also spoke about the ECP seeking Article 254’s support for postponing the elections. “Can Article 254 be invoked in such a scenario? The Article 254 does not allow violation of the Constitution,” he remarked.

The top judge added that the court was determined to “dispose of this case as soon as possible”.

“The Election Commission should answer the questions raised in PTI’s petition,” he said while addressing the electoral authority.

Following the ECP’s announcement, Khyber Pakhtunkhwa Governor Haji Ghulam Ali also urged the electoral body to also hold the general elections on the same date (October 8) as the Punjab polls given the growing security threats from terror groups operating from the Pakistan-Afghanistan border regions.

Meanwhile, In an unusual development in the top court, two judges of the Supreme Court raised questions over the powers of the chief justice of Pakistan (CJP), saying the apex court “cannot be dependent on the solitary decision of one man, the Chief Justice”.

In a 27-page detailed ruling — claimed to be the judgement in Pakistan Tehreek-e-Insaf’s (PTI) plea over the delay in Punjab and Khyber Pakhtunkhwa elections — Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail pointed out that it is important “to revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan [Umar Ata Bandial]”.

“This court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system approved by all Judges of the Court under Article 191 of the Constitution, in regulating the exer-cise of its jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of Benches to hear such cases; the constitution of Regular Benches to hear all the other cases instituted in this Court; and the con-stitution of Special Benches,” it read.

Highlighting the drawback of running a “one-man show”, Justice Shah and Justice Mandokhail mentioned that it leads to the concentration of power in the hands of one individual, making the system more susceptible to the abuse of power.

“In contrast, a collegial system with checks and balances helps prevent the abuse and mistakes in the exercise of pow-er and promote transparency and accountability,” they mentioned, adding that it also ensures good governance as it rests on collaboration, shared decision-making and balance of power.

“When one person has too much power, there is a risk that the institution may become autocratic and insulated, re-sulting in one-man policies being pursued, which may have a tendency of going against the rights and interests of the people,” the document read.

The two judges, mentioning that the justice system stands on public trust and confidence reposed in it, emphasised that “one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule”.

They mentioned that the chief justice of this court was conferred with wide discretion in the matter of constituting benches and assigning cases to them under the present Supreme Court Rules 1980.

“Ironically, this court has time and again held how public functionaries ought to structure their discretion but has mis-erably failed to set the same standard for itself leaving the chief justice with unfettered powers in the matter of regu-lating the jurisdiction under Article 184(3) (including suo motu) and in matters of constituting benches and assigning cases.

“It is this unbridled power enjoyed by the chief justice in taking up any matter as a suo motu case and in constituting special benches after the institution of the cases and assigning cases to them that has brought severe criticism and lowered the honour and prestige of this court.”

They said that the court has been ushered into a “political thicket” by the “suo motu” proceedings and the connected constitution petitions, which commenced last year with the dissolution of the National Assembly of Pakistan and reached the dissolution of the provincial assemblies of two provinces this year after passing through the disputes over the matters of counting of votes of defected members of political parties and election to the office of the chief minis-ter of a province, and that too, in the exercise of its original jurisdiction under Article 184(3) of the Constitution.

Juxtaposing the majoritarian verdict as “dictatorship”, Justice Shah and Justice Mandokhail said that democracy does not mean majoritarian rule.

“The essence of democracy is the participation of all concerned in the decision-making process and arriving at collec-tive decisions by accommodating differences of interest and opinion to a possible extent.

“Taking all decisions only by majority rule is no less dictatorship, and the absolutist approach to controversial issues is the hallmark of extremists.”