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ISLAMABAD: In an unprecedented move, the Election Commission of Pakistan (ECP) tasked with the responsibility of conducting general elections in a free and fair manner finally put its foot down on Thursday when it overturned a June 12 order of the Balochistan High Court of transferring two returning officers (ROs) to different areas of the province.

The BHC had transferred ROs Asadullah to Gandawa from Dera Bugti and Shah Baran to Dera Bugti from Gandawa with immediate effect in the exigency of service and public interest.

The high court had also directed that its decision would take immediate effect, besides both returning officers would immediately submit relinquishment and assumption reports to it.

The high court’s order was made without intimation to the commission

The BHC order also required that the Gandawa judicial magistrate would also hold additional charge of Jhal Magsi.

But the moment ECP came to know about the transfer and posting in Balochistan, it issued a notification on Thursday stating that in pursuance of Article 218(3) of the Constitution, read with Sections 4, 51, 54 and 55 of the Elections Act, 2017, the high court order made without intimation to the commission had been cancelled.

The notification has also been forwarded to the provincial election commissioner, Quetta, the BHC registrar and district election commissioners of Dera Bugti and Jhal Magsi. Besides, the commission ordered the two transferred ROs to continue the duties as assigned by it.

The need of an all-powerful election commission was felt when former chief election commissioner Fakhruddin G. Ebrahim had decided to set aside a judgement of the Supreme Court amending the schedule for the presidential polls announced by the commission.

But Mr Ebrahim, who enjoyed the reputation of being a man of principles, had to resign after he failed to muster support from four members of the commission to protect its independence.

Mr Ebrahim was displeased by the court’s decision to change the presidential poll schedule on a petition of a PML-N legislator without hearing other parties.

Likewise, the 2013 general elections were also questioned by the Pakistan Tehreek-i-Insaf by pointing fingers at the commission for its failure to hold the elections in an impartial manner since it was generally believed and alleged that the elections were held by the ROs who were directly under the control of then chief justice Iftikhar Mohammad Chaudhry. The PTI, along with the Pakistan Awami Tehreek, had also launched a 126-day sit-in outside the Parliament House to register their protest against what they called elections stolen from them.

Later, a judicial commission headed by then Justice Nasirul Mulk had also raised eyebrows over the ECP’s ability to conduct and organise elections by stating that the commission while constitutionally empowered had proved to be very feeble in practice. It remained unable to train and monitor the massive election machinery that reports to it and had not provided the kind of dynamism and sense of purpose.

Questions were also raised about the fairness of the 2008 general elections when the ECP had to go for the polls with flawed electoral rolls again under the directions of the Supreme Court.

Under Article 218(3) of the Constitution, the ECP is empowered to organise and conduct the elections and to make such arrangements as are necessary to ensure that the elections are conducted honestly, justly, fairly and in accordance with the law and that corrupt practices are guarded against.

Similarly, Section 4 of the Elections Act authorises the ECP to issue directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it.

Under the Elections Act, any order of the commission will be enforceable throughout Pakistan and will be executed as if it had been issued by the high court. And anything required to be done for carrying out or execute the act will be done in a manner as the commission may direct.

Likewise, Section 51 of the Act allows the commission to appoint ROs from amongst its own officers or officers of corporations, autonomous or semi-autonomous bodies controlled by any government, or from the subordinate judiciary in consultation with the chief justices of the high courts concerned.

Whereas Section 54 of the Act empowers the ECP to obligate ROs to do all such acts and things as may be necessary for effective conduct of the polls.

Section 55 of the Act asks the ECP to conduct disciplinary proceedings and that the election officials appointed or deputed to perform duties in connection with the election will be deemed to be under its control, superintendence and discipline.

Published in Dawn, June 15th, 2018

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