SC suspends LHC order on election officers paving way for Feb 8 polls

• ECP ordered to issue election schedule today.
• Contempt of court notice issued to PTI’s Niazi.
• Court calls up PTI plea to determine maintainability.
• LHC ordered not to hold hearings over plea.
  
• CJP says LHC passed order in “undue haste”.

ISLAMABAD: Following much deliberation over measures to avoid delay in holding of sought-after general elections, the Supreme Court Friday evening suspended the Lahore High Court’s poll-related order, paving way for the elections to take place on February 8, a major demand of political stake holders and the Election Commission of Pakistan (ECP).

A three-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Sardar Tariq and Justice Mansoor Ali Shah, took up the appeal filed by the ECP on the LHC order halting the training of district returning officers (DROs) and returning officers (ROs). 

"The election commission should do its job [...] we will not micromanage you,” CJP Isa told the ECP’s team at the court, noting that there should be no hindrance in staging the polls now.

In its order on the ECP’s petition, the three-member SC bench ruled that the LHC would not hold further hearings on the petitions related to the appointment of polling officers and that any matter pertaining to the issue should be referred to the top court.

The LHC’s decision, which came on a plea filed by Pakistan Tehreek-e-Insaf (PTI) lawyer Umair Niazi, suspended ECP’s decision to appoint the ROs and DROs from the executive branch.

The single-member LHC bench then referred the matter to the court’s chief justice, seeking the formation of a larger bench to hear the issue further. The LHC, today, constituted a bench to hear the case on December 18.

However, after the top court’s order, the issue will not be taken up in the high court as the petitions have been deemed "non-maintainable" by the SC.

CJP Isa, while reading out the order, also issued a contempt of court notice to the PTI lawyer, seeking an explanation from him as to why proceedings should not be initiated against him.

The apex court stated in its order that the LHC bench issued an order exceeding its jurisdiction.

"The SC declared in its [November 3] order that no one will be allowed to derail the democracy," it said, adding that the president and the ECP decided the poll date after consensus among all the stakeholders.

The CJP said that the ECP lawyer stated that this court had stated that no one would be allowed to hinder the elections.

“LHC’s judge passed the order in undue haste,” he said, adding that the petitioner is a member of the same political party — PTI — on whose plea polls had been ordered by the SC.

The apex court stated in its order that the LHC bench issued an order exceeding its jurisdiction.

"The SC declared in its [November 3] order that no one will be allowed to derail the democracy," it said, adding that the president and the ECP decided the poll date after consensus among all the stakeholders.

The CJP said that the ECP lawyer stated that this court had stated that no one would be allowed to hinder the elections.

“LHC’s judge passed the order in undue haste,” he said, adding that the petitioner is a member of the same political party — PTI — on whose plea polls had been ordered by the SC.

The court then issued a contempt of court notice to PTI's Umair Niazi, seeking an explanation for violating the apex court's order.

The hearing

At the outset of the hearing, CJP Isa clarified that the benches are being constituted under the Supreme Court (Practice and Procedure) Bill, 2023.

“It was my wish that senior-most judges should be part of this bench and I proposed the same. However, Justice Ijazul Ahsan could not come due to his engagements. Then, I asked Justice Mansoor Ali Shah.”

CJP Isa then asked ECP’s lawyer Sajeel Swati what was the hurry that he had to appear before the court at this hour.

In response, Swati said: “Our petition regarding the February 8 elections needed to be heard today.”

The CJP — who was set to leave abroad today — asked the lawyer what would have happened if he had boarded his flight. “But well, it’s my constitutional responsibility and I have to fulfill it.”

The ECP’s lawyer then informed the court that the LHC had suspended the commission’s notification to appoint ROs and DROs from the bureaucracy.

“The LHC’s order stopped the election process,” Swati said.

When the court asked the lawyer to explain the issue further, he said that PTI’s Umair Niazi had moved the LHC seeking the appointment of the DROs and ROs from the judiciary and not from the executive.

Accepting the PTI’s petition, he said, the LHC suspended the commission’s notification. The lawyer further said that for the ECP, its priority was the judicial officers, but the judiciary declined.

He also noted that it isn’t the ECP that provides the list of the officers for polling duties, the government does — rebutting PTI’s allegations of bias.

The ECP’s lawyer also said that PTI has demanded elections be held in a transparent manner under Article 218. At this, Justice Shah wondered whether Article 218 that transparent polls cannot take place.

The lawyer then said that the PTI wanted the provision of appointing DROs and ROs from the bureaucracy to end forever. The petitioner, PTI, had also prayed to the LHC that the returning officers be appointed from the judiciary.

“This section could have been challenged at any time, so why is it being challenged now? Did the LHC also suspend the Sindh, KP, and Balochistan ROs appointments?” Justice Shah wondered.

Moving on, the CJP wondered what the PTI’s lawyer wanted. The CJP asked how could the high court pass an order against its own verdict. He then reminded the people that the SC had passed the Feb 8 polls order on the plea of PTI — the same party whose plea in LHC led to this conundrum.

The CJP then asked whether Umair Niazi’s LHC petition could stop the entire polling process across the country.

“Umair Niazi’s petition is in contempt of the Supreme Court’s order. It is a bid to derail democracy,” the CJP said and asked whether the SC should start a contempt proceeding.

He added that it seems that Niazi does not want elections.

The chief justice asked if judicial officers, election commission, and executive do not conduct elections, then who will? “Prima facie, it seems like a bid to postpone the polls.”

The CJP asked the ECP counsel about who is responsible for holding the elections. At this, the lawyer said that ECP is responsible.

At this, CJP Isa said: “Sorry we are very clear. Do you remember when your petition was underway in the apex court we said that we’ll not do your jon but we’ll ensure your job is done. There is a big difference in both things,”

“I’m very sorry that such orders are being passed by the judiciary,” he said, lamenting about the LHC’s order and the judiciary’s refusal to provide staff.

The hearing went on for several more minutes, following which CJP Isa announced the order to suspend the high court's order.

PPP, PML-N, PTI demand elections on Feb 8

In conversation with Geo News, PPP spokesperson Faisal Karim Kundi said his party had a clear stance when it comes to the staging of polls: "Elections should be held on February 8."

"Asif Zardari has also stated that elections should take place," he said, noting that the LHC order has caused fears among stakeholders over the general polls.

"We hope that the Supreme Court will take a decision today and revoke the LHC's stay," Kundi said, as he further hoped that the election schedule would be released "during the day".

The former federal minister said the Pakistan Tehreek-e-Insaf — which had filed the plea in the LHC — was trying to evade the elections.

"We did not get a level playing field in the past as well. The PPP believes in the people's power," he added, a claim that the PTI and PPP have repeatedly maintained that they were not getting equal electioneering opportunities.

Pakistan Muslim League-N spokesperson Marriyum Aurangzeb said it was crucial that elections take place on February 8, blaming the Gohar Khan-led PTI for the uncertainty surrounding the elections.

"PML-N stance is that the polls be staged on February 8. We believe in transparent polls and we are already gearing up for elections," the party spokesperson noted.

The spokesperson also noted that the ECP has the constitutional right to appoint ROs and DROs of its choice.

Slamming PTI founder Imran Khan, she said he was complaining about level playing as the buttons of the RTS were not in his hands anymore.

PTI Senator Barrister Ali Zafar also said that his party wants elections on Feb 8, claiming that there were chances that the PTI might retract its plea in the LHC that started this entire conundrum.

"We will try to do away with anything that comes in the way of elections. However, we are still demanding that the ROs and DROs be appointed from the judiciary," the PTI leader added.

Election conundrum

Upon the advice of then-prime minister Shehbaz Sharif, President Alvi dissolved the 15th National Assembly three days before the completion of its 5-year term.

The former government prematurely dissolved the lower house to ensure that the polls were scheduled 90 days later — in line with the Constitution.

However, that did not seem to happen, as the commission had said that it could not follow up on the 90-day deadline as it had to work on fresh delimitation of constituencies after the Council of Common Interests (CCI) approved the results of the 2023 digital census

The ECP did that because Section 17(2) of the Elections Act states that “the commission shall delimit constituencies after every census is officially published” — which is in contrast with the constitutional deadline.

In October, the Raja-led ECP announced that the polls would be staged in January next year, but did not announce the exact date, and in return, received flak.

In response to the ECP’s decision to hold the polls later than the constitutional deadline, the PTI and several others filed a plea in the top court seeking timely polls. On the same plea, the SC ordered the ECP and the president to consult, which resulted in a consensus date of February 8.

But that did not seem to shut down the rumour mill and fears of the political parties who repeatedly voiced concerns that since the election schedule hasn’t been announced, the polls would be delayed.

PPP co-chairperson Asif Ali Zardari had also said that a delay of “eight to 10 days” in the general elections would make no difference.