THE Constitution is clear. Article 218(3) states: “It shall be the duty of the Election Commission to organise 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.” Furthermore, Article 220 states: “It shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.” Clearly and unambiguously, the holding of free and fair elections is the remit of the Election Commission of Pakistan. And in the execution of its duties, the ECP has the power to demand the assistance of all executive authorities in the country if the ECP deems it necessary. It is difficult then to understand why Chief Justice Saqib Nisar has asserted that the judiciary will ensure free and fair elections in the country.
Perhaps Chief Justice Nisar is seeking to reassure an anxious electorate that anti-democratic forces will neither be allowed to derail the electoral process nor manipulate it. A strong judiciary standing guard over the democratic process could strengthen a system that is teetering. Yet, a strong democratic process also requires that institutions remain within their constitutional ambits and not seek to usurp the prerogatives and responsibilities of other institutions. Strengthening the ECP has been a focus of successive parliaments and the next general election to be held will be supervised by an ECP that is more independent and empowered than at any other point in Pakistan’s political history. This, then, is the time for other institutions to support the ECP wholeheartedly. The campaign season ahead and the general election are expected to be fiercely contested and both will surely test the mettle of the ECP, its commissioners and the vast administrative apparatus that will report to it.
Certainly, the judiciary will have a role to play. While there has been no announcement as yet, returning officers could be selected from among the lower judiciary. Moreover, legal challenges to the nomination or disqualification of candidates may well end up before the superior judiciary. But those are supporting functions; the core responsibility to organise and conduct a general election belongs to the ECP. Away from the specific issue of which institution has primary responsibility for supervising a free and fair electoral process, there is a more general problem emerging of institutions interfering in the workings of democratic bodies. The Constitution is supreme and the rule of law inviolable, but separation of powers and checks and balances are an integral part of a successful democracy. A long, bitter history of undemocratic interventions and oversight ought to have been warning enough for the institutions. Tamper with the democratic foundations and all will suffer.
Published in Dawn, March 14th, 2018