ISLAMABAD:
A three-member bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justices Ijazul Ahsan and Munib Akhtar resumed hearing on Wednesday the Election Commission of Pakistan’s (ECP) petition asking the apex court to revisit its April 4 order to hold polls for the Punjab Assembly on May 14.
The same bench has issued the orders being challenged in the petition.
At the outset of the hearing, Attorney General of Pakistan (AGP) Mansoor Awan said that at the previous hearing the court had asked why had the ECP not raised these points before. The bench had also remarked on the government being adamant over the 3-4 majority order debate, he added.
The AGP contended that the argument of elections being held in one province would affect National Assembly polls was put forward previously as well. “We had also mentioned the majority judgment in our response,” he said.
At this the CJP replied, “You should not fret. The bench is sitting here to hear you. If a reasonable argument is raised, we will review it and take a decision as well”. Contentions were raised in court but arguments were not presented on them, he said, adding that the jurisdiction of a review was discussed during yesterday’s hearing.
“We will not use the past against the government. We work for the blessings of God, not the government. ” said the CJP. “We sit here after rendering many sacrifices. Ask your colleagues to not say such things at the door of the court.”
Do not make conversation difficult in the courtroom, said Justice Bandial, chiding the AGP. “We are quiet because we work for God alone. The entity you work for also does its own work.”
The CJP assured AGP Awan that the court was hearing the case without bearing any misgivings but reports attributed to the bench were not always accurate.
He referred to claims about the top court providing Pakistan Tehreek-e-Insaf Chairperson Imran Khan a Mercedes car for his appearance before the SC on May 11. “I don’t even use a Mercedes myself,” said CJP Bandial, adding that it was the police who had made arrangements of a luxury car for the former prime minister.
“We have welcomed you and even said good to see you,” said Justice Bandial directing the AGP to advise his colleagues against using harsh words in parliament.
Resuming arguments, ECP lawyer Sajeel Swati said that the apex court has always interpreted the Constitution of Pakistan as a “living document”. “The SC is the ultimate institution of justice, hence its scope cannot be limited,” said Swati, adding that no other court had the authority to dispense complete justice and use Article 190.
At this, the CJP questioned whether 150 years of court precedents had become ineffective. “According to the 150 years of judicial precedents, there is a difference between the scope of review and appeal. You didn’t answer this question yesterday either.”
Meanwhile, Justice Akhtar remarked that if the bench were to accept the ECP’s argument pertaining to the jurisdiction of a review and appeal, it would “nullify Supreme Court’s rules”.
No amendments have been made on the jurisdiction of a review in SC rules yet, said Justice Akhtar, adding that if the scope is expanded, it would reopen several past cases. “How can it be that Order 26 of the SC Rules about revision is not fully applicable. If Order 26 is not fully applicable then the time period for filing a review petition will also lapse.”
Justice Akhtar expressed concerns over the possible ramifications if the ECP’s argument was accepted. “A review petition could be filed 10 years later claiming that the rules are not applicable.”
At this, the ECP lawyer said that the time period to file a review petition should not be limited.
This prompted Justice Akhtar to ask Swati for a solution for the concerns raised by the bench at which the ECP lawyer said the rules could not bar a constitutional motion for revision.
CJP Bandial observed that the use of Article 184(3) had increased a lot. “We realize that this can also lead to mistakes. In your view, it is not correct to limit the scope of the review and you want it to be expanded,” he said, addressing Swati. “The opinion of the AGP will be taken on this matter. Now present arguments on the actual case.”
Swati said that the matter of fixing a date for elections had come before the courts for the first time, at which the CJP said that the court expected references for such laws to also be given. The CJP remarked that the ECP had said they would hold elections once security and funds are provided. “Now what is the legal basis of these points? The nine-member bench had raised important questions in its order.”
CJP Bandial observed that the interests of political parties seemed to lie elsewhere. “Instead of presenting arguments on legal grounds, objections were raised on the bench itself and nine-member bench was reduced to a five-member bench. That too on court orders.” he said.
“When a seven-member bench was not formed on court orders then how can the decision be of a 4/3 majority?” he asked. “The court can easily dismiss the review petition within two minutes. But the bench wants to hear your case and decide the matter on legal grounds. We can easily say you missed the ride.”
At this Swati replied that the ECP had written a letter to President Arif Alvi regarding the court order.
CJP Bandial remarked that the ECP did not inform the president about the points it is raising before the court now. The electoral body only asked the president to give the date for elections, observed the CJP, adding that the top court wants to empower the ECP; wants the ECP to remain independent.
He questioned why the ECP had not advised the president to hold one-day polls. CJP pointed out that the president was not told about the 1970 elections nor was he informed of Article 218(3). He further remarked that the president was informed neither about security nor funds for the polls. “Further powers under Article 218(3) are being sought without discussing ground realities. Eyes and minds should be alert when using the powers granted by the Constitution.”
Swati replied with references to past cases where the court had exercised powers under Articles 184(3) and 187, which pertain to the jurisdiction of the top court and its execution of processes. He mentioned the Talwar victim case, the judges case and the 16,000 employees case.
At this, the CJP observed that the review in the judges’ case was done through a suo motu notice. He added that in the employees’ case, the minority note had specified that excluded revision could not be restored under Article 187.
Swati put forth that in the terrorism case, the apex court had declared that a second review petition could not be filed but the court itself could review the decision. The ECP lawyer also referred to Justice Qazi Faez Isa’s case and mentioned that the court had withdrawn its decision over Justice Isa’s wife’s review petition.
The court adjourned the hearing till 12pm tomorrow (Thursday).
Source link: https://tribune.com.pk/story/2418377/cjp-questions-why-ecp-did-not-raise-review-petition-points-earlier