ISLAMABAD: The Supreme Court on Friday held the Election Commission of Pakistan (ECP) should approach the top court to seek a relief if the executive authorities were reluctant to extend assistance to the commission to fulfill its duties under Article 220 of the Constitution to hold fair elections.

“It was not for the ECP to (metaphorically) wring its hand and then bow under the weight of its own professed inability to persuade or cajole the executive authorities to obey the constitutional command of Article 220 and pass an unconstitutional order of pushing forward the election by several months,” observed Justice Munib Akhtar in a detailed judgment.

The judgment explained the top court’s April 4 short order in which a three-judge Supreme Court bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial had fixed May 14 as the new date for the conduct of the Punjab Assembly elections after disregarding ECP’s appointed date of Oct 8.

But for the Khyber Pakhtunkhwa (KP) elections, the court had said since the matter was not adjudicated upon, therefore, the petitioner can approach any forum as deemed appropriate for seeking relief. Then the court had also quashed the March 22 ECP notification in which the commission delayed the holding of elections until Oct 8 and declared the same as unconstitutional.

Now in the detailed judgment, Justice Akhtar observed that the ECP should approach the Supreme Court for the relief of writ of mandamus.

There can be no doubt that ECP would be an aggrieved party, both in its own right and as acting on behalf of the electorate as a whole, seeking fulfillment of the constitutional duty for the enforcement of a fundamental right under Article 17 of the Constitution.

Rather than being diverted into making an unlawful order in purported exercise of a power that did not exist on the constitutional plane, the commission ought to have pursued the legal remedy readily available, Justice Akhtar observed.

Article 218(3) does not impose a duty upon the ECP, the verdict explained, to merely hold elections, rather requires elections be held honestly, justly and fairly. But the constitutional duty to hold fair elections does not and cannot convert the duty into a power vis-à-vis other constitutional provisions, since it will make the ECP master of all matters electoral.

The verdict was emphatic in declaring that the ECP was not the master rather a forum that the Constitution has chosen to perform the task (elections) that lies at the heart of constitutional democracy.

Thus holding of elections cannot be placed at the will, i.e. power, howsoever bonafidely expressed or exercised by any particular agency or forum and howsoever exalted its creation or position may be.

Democracy demands elections while the Constitution commands elections, the judgment emphasised, adding that democracy was meaningless without such an exercise, repeated periodically as required by the Constitution. To concede to the ECP the power to interfere with the electoral process would amount to derailing democracy itself, with incalculable consequences, the judgment feared.

The verdict explained that the Constitution expressly confers on the prime minister in relation to the National Assembly and the chief ministers in relation to the provincial assemblies, the power to advise dissolution before the stated term, respectively.

These are distinct constitutional powers, of a political nature. The effect of an early dissolution is reflected in Article 224 itself, and of course the then Chief Ministers of Punjab and KP provinces exercised their respective powers in the instant case.

If the contention is accepted that the ECP, under Article 218(3), has the power to hold all elections on the same day, then it would mean the commission has a constitutional veto power over the expressly stated power to advise dissolution.

One would have the unseemly spectacle of the prime minister or a chief minister, cap in hand to the commission, seeking its permission or pre-clearance before advising dissolution. This would be a negation of the constitutional powers conferred upon them, the judgment feared adding this cannot be what was contemplated by the constitutional scheme.

Article 218(3) is certainly not designed or intended to allow the ECP to steamroller over all other constitutional provisions relating to elections, including those that impose duties on the Commission itself, the judgment said.

The power to alter the election programme was circumscribed and not open-ended, it said adding it can only be exercised if “necessary for the purposes of Election Act 2017” and not otherwise.

The verdict explained that the ECP was empowered to make “alterations in the election programme” “for different stages of the election,” but the overall programme must recognisably remain the same.

The time period imposed by Article 224 for holding of general elections cannot be extended by the commission by reason of any overriding constitutional power claimed to be conferred upon it by Article 218(3) or in terms of the Election Act 2017, it said Article 218(3) cannot and does not operate as any sort of constitutional power enabling the ECP to override them or deny them their due application.

No reading, holistic or otherwise, can end in a result that diminishes other constitutional provisions to the point that relegates them to being mere handmaidens to Article 218(3). That would be a travesty, the judgment said.

Published in Dawn, Aug 5th, 2023

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