LAHORE: The Lahore High Court has ruled that the Election Commission of Pakistan (ECP) needs to closely watch all the decisions being taken by the Punjab’s caretaker cabinet and to correct them if they fall outside its (cabinet’s) jurisdiction.

“Increasingly, cases land in this Court’s docket that reflect a transgression of powers by the caretaker cabinet, which is impermissible,” Justice Shahid Karim observed in the detailed verdict on the petitions against a decision of the caretaker government of Punjab, withdrawing notifications for creation of a new division, four new districts and two tehsils in the province.

Through a short order, the judge had set aside the impugned notifications on June 7. Ikhlaq Haider Chattha and others had filed the petitions.

Giving reasons in the detailed order, Justice Karim observed that the ECP must come alive to its duty to rein in the caretaker cabinet if it is found to be disloyal to its mandate and primary role.

The judge said the label “caretaker” merely denotes a cabinet for a short duration, constituted under peculiar circumstances, and to fulfill a constitutional mandate.

He said the distinction between the elected and a caretaker cabinet does not lie in the use of powers under the Constitution or the laws, but in making decisions while using those powers and that must be limited to the purpose underlying their establishment.

The judge observed that although a caretaker government exercises the same range of powers, its actions and decisions must comport with and not detract from its primary role as tenants of a regime infused with the exalted and core ingredients of neutrality and impartiality.

He said the curtailment by the courts over the years is regarding use of powers that has been circumscribed by the dicta of the courts and now finds expression in section 230 of the Election Act, 2017.

“It must be borne in mind that every power has legal limits and the powers of a caretaker cabinet are more limited than an elected cabinet,” the judge ruled.

About the role of the ECP, the judge noted that it is duty-bound to organise and conduct the election and to make such arrangements as are necessary to ensure that the poll is conducted honestly, justly and fairly.

He said a cumulative reading of articles 218, 219 and 220 of the Constitution, read with section 230 of the Election Act, 2017, would make it abundantly clear that the ECP exercises an overarching power over a caretaker cabinet during the time it is in place and whose sole object is to assist the commission to hold election in accordance with law.

“There is no other role envisaged either by the Constitution or the law to inhere in a caretaker cabinet and this must be at the heart of any decisions made by the caretaker cabinet,” the judge maintained.

He said it is important for the ECP to engage proactively with the caretakers to supervise and oversee the decision-making process on its own volition and without instigation by the superior courts.

He said the Constitution vests enormous powers in the ECP to do so and there is no doubt that under Article 220 of the Constitution it is the duty of all executive parties in the federation and the provinces to assist the ECP in the discharge of its functions.

The petitioners challenged the decision of the caretaker government of suspending the notifications issued by the previous elected government about the creation of new administrative division of Gujrat, four districts of Murree, Wazirabad, Talagang and Kot Addu, and two tehsils of Jalalpur Jattan and Kunjah.

Published in Dawn, June 21st, 2023

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