No one should dream SC will order postponement of polls: SC

KARACHI: The Supreme Court (SC) observed on Wednesday that the court would never issue an order to postpone the general elections and no one should even dream that the elections could be postponed.

Justice Anwar Zaheer Jamali made these observations while heading a five-member bench of the apex court bench while hearing the suo moto proceedings on the Karachi law and order implementation case. The apex court also ordered the Election Commission of Pakistan (ECP) to comply with the SC judgment on the delimitation of constituencies on a non-ethnic basis.

The Supreme Court dismissed the application of Election Commission that sought deferment of the SC’s direction regarding delimitation of constituencies in Karachi till the holding of the forthcoming general elections.

“The delimitation of constituencies has nothing to do with the fresh census,” the Supreme Court’s five-member bench headed by Justice Anwar Zaheer Jamali observed while hearing suo moto proceedings on the Karachi law and order implementation case.

“The time for the law of necessity and expediencies has long gone,” Justice Anwar Zaheer Jamali observed, adding that the court was concerned about what the compulsion of the ECP was for not implementing the court order that was passed on October 6, 2011.

Justice Anwar Zaheer Jamali observed that the court had not asked the Election Commission to increase or decrease the seats of the national and provincial assemblies but the ECP was unnecessarily trying to avoid implementation of the court judgment. Justice Khilji Arif Hussain observed that the postponement of elections would not be allowed and no one should even think even in their dreams that elections could be postponed.

The court observed that after the amendments of the Act under section 10-A, the ECP had been given undeterred powers to make any amendment at any time of its own motion. The Election Commission’s counsel Munir Paracha submitted that the delimitation of constituencies could not be possible without a census and there was a constitutional embargo for the ECP to carry out the exercise of delimitation of constituencies in Karachi.

He submitted that the Supreme Court’s observation in its detailed judgment regarding delimitation of constituencies was not mandatory for compliance as court left it to the ECP to initiate the exercise on its own. Referring Article 51(5) of the Constitution, he said that unless new census had been conducted, the delimitation of constituencies was not possible besides section 7 also debarred ECP from the delimitation.

However, when the court asked the counsel to read the relevant Article 51 and the section 7,8,9 of the Delimitation of Constituencies Act, the counsel conceded that there was no hurdle in delimitation and he could not be able to pinpoint the provision in the law that placed embargo on the delimitation or compliance of the court order.

The court observed that ECP Secretary Ishtiak Ahmed conceded before the court on November 28 that neither Article 51(5) of the Constitution nor section 7(2) of the Delimitation of Constituencies Act 1974 was the hurdle in the compliance of the court observation. The secretary had assured that the court observations regarding delimitation of constituencies would be complied with in letter and spirit within shortest possible time.

The ECP counsel said that extensive meetings were also held with all the stakeholders from Karachi to discuss how delimitation was possible in light of the Supreme Court order issued on October 6, 2011 and a number of suggestions were received from the political parties stressing new constituencies for single ethnicity to the exclusion of others.

He submitted that the political parties’ suggestions were quite opposite to the intent of the Supreme Court order which suggested that all the communities should live together in peace and harmony thus it had become evident that any delimitation exercise in light of proposals received by the ECP would be contrary to the spirit of the Supreme Court’s order.

Justice Khilji Arif Hussain observed if different suggestions were coming from the stakeholders, the ECP had to apply its own mind. Justice Khilji observed that Supreme Court passed the judgment on October 6 and till now the order was not complied with by the ECP in letter and spirit and now the court was being informed that in present situation such exercise could not be carried out and same would not be allowed to do so.

ECP counsel submitted that implementation of the court order could not be possible for time being and prayed the court to defer its observations for undertaking delimitation at Karachi until a fresh census was conducted. He said that assembly tenure would end on March 16 and ECP would have 60 days more and it would be impossible to carry out such an exercise. He also expressed fear that the entire process of the elections could be in jeopardy if such exercise was to be done.

The court took exception to the apprehension of the Election Commission’s counsel. Justice Khilji Arif Hussain observed that the court might differentiate between grey and black areas but what the court would do when one might declare black as white.

Justice Anwar Zaheer Jamali observed that there was no concept of grey areas in Islam and it was the tradition of Islamic Shoora that they vote by rising hands to avoid any hypocrisy. The court observed that it was evident that grounds urged in the ECP application for avoiding the implementation of the court order was misleading, misconceived and without any substance therefore the application was dismissed.

Meanwhile, the Supreme Court withdrew its show-cause notice issued against IG Sindh for concealment of facts after unconditional apology. IG said that there was nothing to be concealed as the list of all the officers and police personnel who were facing trial or charges had been placed before the court. He submitted that non-mentioning the names of two SSPs in the list was not deliberate but the list was prepared as per list of the MIT.

Justice Jamali said that the cases of police officers and police personnel would strictly be followed under the police rules and also directed to provide protection to the complainant Changez Khan and others who lodged complaint against SSP Hyderabad Pir Fareed Jan Sarhandi and SSP Jamshoro Furrukh Bashir.