Why caretaker govt if ECP has to hold polls, asks SC

ISLAMABAD: The Supreme Court Tuesday observed that election within 90 days of the dissolution of National Assembly was a constitutional mandate and it could not change the Constitution.

This observation from the top court came during the hearing of a petition seeking the holding of elections to the national and provincial assemblies simultaneously.

A three-member bench of the apex court — headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa — heard the petition.

Justice Amin-ud-Din Khan and Justice Athar Minallah were the other members of the bench.

The chief justice observed that everything ended before the Constitution.

Justice Athar Minallah asked the petitioner’s counsel Shah Khawar that he should have approached the court to implement the decision, which was against the Constitution. “Whosoever violates the Constitution, he should be punished so that it can be prevented,” Justice Minallah remarked.

The chief justice questioned if the court had the authority to go against a clear order of the Constitution. “Can we decide to hold elections after four years?” the CJP questioned. Addressing the petitioner’s counsel, he said, “Let’s talk about the Constitution and law in the court. We cannot go against the purpose of the Constitution and law; consensus can be reached in children’s disputes or land disputes, but not in constitutional and legal matters; no agreement can be a substitute for the Constitution and law.”

The court also raised questions about the need for a caretaker government and the power of a political party to dissolve the assembly prematurely and observed that parliament should consider it.

The chief justice remarked that if the purpose of the caretaker government was to ensure transparent elections, then the Constitution had given this power to the Election Commission adding that parliament should look into the matter.

The parliament should also see whether the dissolution of assembly is an absolute or conditional power, he remarked.

The court inquired whether the order of the court was issued on the matter of holding elections in Punjab on May 14 or not.

Earlier, Shah Khawar requested the court to withdraw the petition, saying the matter had become infructuous.

He submitted that a case related to the election was being heard in the court and contended that the Supreme Court had given a decision on April 4 that elections should be held in Punjab on May 14, so they applied for elections in the whole country on the same day so that consensus could be developed.

The chief justice said that this was the dispute as to what was the decision and where was the order of the court in the Punjab election case.

He observed that there could be mutual consent between the parties to the dispute involving children or land but how the court could ask the parties to reach consensus for implementation of the constitutional requirement.

He further asked whether the Supreme Court could change the Constitution.

He said it was the same case involving the decisions of many judges adding that some judges said such and such was the order of the court, while some said such and such was not the order of the court.

The chief justice explained the difference between the order of the day and the order of the court, saying recently in the Practice and Procedure Act case, the opinion of the judges was different and the order of the court continued.

The chief justice added that the order of the court was signed by all the judges.

He further observed that the judgment in the 21st Amendment case consisted of 800 pages, but the order of the court was just one paragraph signed by all the judges.

Shah Khawar, however, said no such order was issued.

During the hearing, Farooq H Naek, counsel for the Pakistan Peoples Party, submitted that the Supreme Court decided on April 4 that elections should be held in Punjab on May 14.

“In this decision too, there was a deviation from the constitutional intention of holding elections within 90 days,” he said, adding that the Supreme Court ignored the violation of the constitutional limit.

The chief justice said the importance of the order of the court was because there would be an insult on violation and if someone was not satisfied with it, they will challenge it.

He also questioned the need for the caretaker government and said one of the objectives of the caretaker government was to ensure transparent elections, but the Constitution had given the responsibility of transparent elections to another body.

“If this was the responsibility of Election Commission, then what is the need for caretaker government?” the CJP questioned.

The chief justice said whoever inserted the caretaker government clause in the Constitution in the name of Constitution Renewal Order (RCO) did not implement it himself.

He said when former president General (retd) Zia-ul-Haq removed the government of Muhammad Khan Junejo, he did not form a caretaker government.

Describing the history of elections and caretaker governments in the country from 1988 to 2018, he said two elections were held in the country without a caretaker government.

The CJP said that parliament had to look into it.

He further observed that dissolution of government and assembly was a debatable matter and parliament should also see it.

He said if there is a government of the same party in the Federation and in the province, then one of the purposes of dissolution of the provincial assembly before the completion of the term might also be to influence the results by using the resources of Federation.

“It is not our job but of parliament to see,” he remarked.

The chief justice said it was the job of the parliament to interpret the caretaker government. The question arises when the assembly and the government are dissolved prematurely, why this was done, this issue should be discussed in the parliament.

Farooq H Naek told the court that the concept of caretaker governments was in conflict with the preamble of the Constitution of Pakistan.

“The aim is to hold transparent elections which have not been held to-date,” Naek submitted and emphasized the need to ensure the conduct of transparent elections and said there was neither political nor economic stability in the country. At this, the chief justice observed that things were slowly getting better.

Farooq H. Naek said all the parties should get a level playing field in the elections.

Meanwhile, the court dismissed as withdrawn the petition seeking holding of elections to the national and provincial assemblies on the same day.

Justice Athar Minallah observed that it was also to be seen whether this petition was admissible under Article 184/3 or not because there were more important issues in the court, including enforced disappearances. The judge said the petition should be dismissed with penalty. Shah Khawar told the court that he was ready to pay the fine to some charity with pleasure.