While rejecting plea of Election Commission of Pakistan seeking review of Supreme Court verdict that general election would be held in Punjab province on May 14, the top court on Thursday plainly said constitutional mandate cannot be changed by any law.
On April 4, a three-judge bench of the top court led by Chief Justice Umar Ata Bandial had issued directives to government to release Rs21 billion for the elections in Punjab and Khyber Pakhtunkhwa, and had fixed May 14 as the new date for elections to the Punjab Assembly, after quashing the electoral body’s decision to extend the polls date from April 10 to October 8.
Earlier, on The Election Commission of Pakistan (ECP) has requested the Supreme Court to review its order to hold the general election in Punjab on May 14, claiming the verdict was not in accordance with the Constitution and previous judgments and lacked regard for the law or the facts.
It is pertinent to mention that on 10 April 2022, the coalition known as Pakistan Democratic Movement (PDM) consisting of 13 political parties under the aegis of Fazal-ur-Rehman, President Jamiat Ulama-e-Islam succeeded to oust Pakistan Tahreek-e-Insaf Chairman Imran Khan through a no-confidence motion form the government, after which the PDM formed its own government, choosing the opposition leader Shehbaz Sharif as the country’s prime minister.
On Thursday, the top court’s special three-member bench, headed by Chief Justice Umar Ata Bandial and comprised of Justice Ijazul Ahsan and Justice Muneeb Akhtar dismissed review petition of the ECP. During the proceedings, the ECP’s representative Sajeel Swati sought one week extension for additional arguments in the matter, however, the bench was not convinced observing that the focus should be on the review petition at hand.
Swati was of the view that a recent legal amendment empowered the ECP to set the election date. Justice Akhtar, however, reminded the lawyer that the current proceedings centered on the review petition, and new arguments not raised in the initial case should not be introduced.
Justice Akhtar directed Swati to identify any errors in the court’s previous ruling. Justice Ahsan underlined that the constitutional mandate of conducting elections within 90 days could not be overridden by legislation. He emphasised that the ECP could not exceed the 90-day deadline. Swati acknowledged a timeframe for elections within 90 days, with provisions for exceptional cases. He highlighted certain inaccuracies in the court’s interpretation of the ECP’s objectives.
He cited the Constitution’s stipulation for the ECP to ensure transparent elections. However, Justice Ahsan questioned if the ECP’s failure to ensure transparency over five years would justify a postponement of elections. Swati clarified that this wasn’t his argument. Chief Justice Bandial reminded Swati that the ECP had initially conveyed that if security and funds were provided, they could hold the elections. The chief justice urged Swati to pinpoint errors in the judgment.
Swati contended that no law could limit the ECP’s powers. He argued that the constitutional provision mandating elections within 90 days should be read in conjunction with Article 254, suggesting flexibility for exceptional circumstances. Justice Ahsan challenged the ECP’s role in deciding specific situations. Swati asserted that Article 218(3) empowered the ECP to make such decisions instead of the court, upon which Justice Ahsan questioned the source of the ECP’s constitutional authority to delay elections.
Swati defended the ECP’s broad authority in ensuring transparent elections. However, Justice Ahsan reiterated his query about the error in the court’s decision. Justice Akhtar observed whether the ECP encountered obstacles to conducting fair elections, it could approach the court, but it lacked the authority to unilaterally postpone elections. He emphasized that the court’s ruling had provided a viable solution for the ECP to proceed with elections.
Chief Justice Bandial observed the Constitution did not permit any institution to violate its provisions. He pointed out the ECP’s shifting stance: initially suggesting that elections could be held if security and funds were provided, but later claiming that polling was infeasible due to unforeseen reasons. During the course of adjudication, Swati cited the incident of May 09 as the reason for the impossibility of elections. Chief Justice Bandial acknowledged the ECP’s perspective but expressed confusion about the ECP’s understanding of the court’s decision. Subsequently, the court dismissed the ECP’s review petition after concluding the hearing.
The ECP –
The ECP is an independent, autonomous, permanent and constitutionally established federal body responsible for organizing and conducting elections to the national parliament, provincial legislatures, local governments, and the office of president of Pakistan, as well as the delimitation of constituencies and preparation of electoral rolls.
As per the principles outlined in the Constitution of Pakistan, the Commission makes such arrangements as needed to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. The ECP was formed on 23 March 1956 and has been restructured and reformed several times throughout the history of Pakistan.
The Chief Election Commissioner and four retired judges of the High Courts, each from one of the four provinces (Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa) of the country, form the five-member panel of the Election Commission.
The current Chief Election Commissioner is Sikandar Sultan Raja. The General Elections 2018 were performed under the Elections Act 2017, which was passed by the National Assembly on 02 October 2017. On Thursday, July 20, 2023, the ECP officials stated that they are ready to hold national elections in October 2023 if the legislative assemblies are dissolved on time. The ECPs bureaucracy is headed by Federal Secretary ECP (BPS-22) officer who manages the ECP Secretariat.
Function and Duties –
The functions and duties of the ECP are defined and set by the Constitution of Pakistan in Article 219, which charges the commission with the following duties: To prepare electoral rolls for elections to the National and Provincial Assemblies and revising such rolls annually [Article 219 (a)]; To organize and conduct election to the Senate and fill casual vacancies in a House or a Provincial Assembly [Article 219(b)]; To organize and conduct election to the Local Government institutions [Article 140(A)]; To appoint Election Tribunals. [Article 219 (c)]; To decide cases of disqualification of members of Parliament and Provincial Assemblies under [Article 63(2)]; and [Article 63(A)]; of the Constitution on receipt of reference from the Chairman or the Speaker or Head of the political party, as the case may be; To hold and conduct election to the office of the President as per Second Schedule to the Constitution of the Islamic Republic of Pakistan [Article 41 (3)]; To hold Referendum as and when ordered by the President. [Article 48 (6)]
For the purpose of each national general election to the State Parliament (National Assembly) and to a Provincial legislature (Sindh, Punjab, Khyber-Pakhtunkhwa, and Balochistan), an Election Commission shall be constituted in accordance with the Article 239G. It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
