ISLAMABAD: Raising alarm over judicial overbearing diluting its writ, the Election Commission of Pakistan (ECP) has proposed legislation to do away with president’s role in determining date for general polls.

Chief Election Commissioner (CEC) Sikandar Sultan Raja has written letters to National Assembly Speaker Raja Pervaiz Ashraf and Senate Chairman Sadiq Sanjrani, proposing amendments to Sections 57 (1) and 58 of the Elections Act, 2017, sources told Dawn.

Letters on similar lines, signed by ECP Secretary Omar Hamid Khan, were also sent to the principal secretary to the prime minister and secretary for parliamentary affairs.

Under the proposed amendments, the ECP wants its power back to announce and alter election schedule at any stage without any intervention by a third party.

“Section 11 of the original (peoples’ representation) Act of 1976 empowered the Commission to announce poll date unilaterally without any trace of intervention by a third party. The Section was amended through Ordinance No. 11 of 1985 (12.1.1985) with the sole object to create the role of the President to hold the elections at the whims of one man,” say the identical letters, seen by Dawn.

CEC asks NA speaker, Senate chairman to end president’s role in setting poll date; blames ‘judicial overbearing’ for hampering commission’s work

“The role of the president to appoint a date for poll in case of dissolution of the National Assembly on the advice of the prime minister or the dissolution of the National Assembly on expiry of the term, is not supported by any constitutional provision,” one of the letters points out.

Amendment to Section 11 of ROPA 1976 introduced in 1985 was subsequently replicated in Section 57 of the Elections Act, 2017. Therefore, Section 57(1) of the Act to the extent of role of the president to announce poll date is against the spirit of the constitution and ultra vires of proviso of Article 222, as it has abridged and taken away the ECP powers mandated under Article 218(3) and 219. It said supplanting the amendments resulted in dilution of the authority of the constitutional mandate vested in the ECP on account of Article 218(3).

It mentions that the Supreme Court, while interpreting Article 224(2), held that the conduct of general elections within 90 days was a constitutional imperative.

“It is settled and trite law that Constitution shall be read as a whole document for harmonious interpretation and no provision should be read in isolation, lest it may result in redundancy of some other important provision of the Constitution. However, due weightage has not been given to another constitutional imperative provided in Article 218(3) which, if not implemented in letter and spirit, may result in abnegation of the standards set under it,” it says.

The CEC said conduct of election was dependent upon the necessary arrangements to be made by the ECP to ensure that the standards of honesty, justness, fairness provided in Article 218(3) are met.

ECP writ

The CEC noted the March 1 and April 5 judgements divested the ECP of its constitutional powers to determine as to whether conducive environment in fact and circumstances, existed for the conduct of elections in a given time, to meet the standards mentioned in Article 218(3) in letter and spirit.

He argued that the writ of the ECP had systematically been challenged on several occasions. “In practice, ECP’s authority has been eroded,” he remarked.

He cited the examples of the case involving mysterious disappearance of 20 presiding officers during Daska by-polls in February 2021 and the contempt proceedings initiated by the ECP against PTI leaders and suspension of its orders by high courts, effectively binding ECP’s hands in the face of brazen attacks. The ECP writ was compromised severely, he added.

Currently, when Punjab elections were around the corner and civil servants have been appointed as district returning officers, returning officers and assistant returning officers, why they would look up to the ECP in such circumstances, the CEC wondered.

“There are many other such incidents of judicial overbearing, which have diluted the writ of the ECP. In such a situation where the ECP writ has been time and again perceptibly compromised, the question arises whether the ECP can perform its bedrock duty to conduct free, fair, and transparent elections to the best of its ability in the given environment.”

Published in Dawn, April 11th, 2023

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