The Election Commission of Pakistan (ECP) on Monday asked Senate Chairman Sadiq Sanjrani and National Assembly Speaker Raja Pervaiz Ashraf to address the controversy over general elections in Punjab and Khyber-Pakhtunkhwa by passing legislation that empowers it to announce a date for polls.
Conveyed through separate letters to Ashraf and Sanjrani, the letter from Chief Election Commissioner (CEC) Sikandar Sultan Raja stressed that the conduct of elections depended upon arrangements ensuring that the standards of honesty, justness, fairness provided in Article 218(3) were met. “The Commission, under the Constitution, is the sole arbiter to decide as to whether conducive circumstances exist to conduct the elections or not. This mandate is not subordinate to any authority,” he said, suggesting that the prevailing controversy should be conclusively put to rest by amendments in Sections 57(1) and 58 of the Election Act, 2017.
Referring to the Supreme Court ruling directing for polls in Punjab to be conducted on May 14, rather than the Oct. 8 announced by the ECP, the CEC said the order had interpreted Article 224(2) to maintain that holding elections within 90 days of an assembly’s dissolution 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,” he said, noting that the verdict had not given “due weight” to Article 218(3).
Lamenting that the ECP’s writ had “systematically” been challenged on several occasions, it added: “In practice ECP’s authority has been eroded.” To support this view, the CEC cited several examples, including the rigging in the Daska by-elections, disciplinary proceedings of which were stayed by court before ultimately being set aside. “Consequently, the message that went out to the recalcitrant functionaries was that they could hide behind these legal orders despite committing serious level irregularities in discharge of their official functions,” he wrote, emphasizing that the writ of the ECP had been severely compromised.
Additionally, the ECP noted, the electoral body had powers of contempt but when it initiated proceedings over threats to the CEC and members of the commission, “again stays were granted even on issuance of show-cause notices, although there were no final orders against which the stay could be issued.” Even after the ECP was allowed to continue proceedings, it noted, no final orders could be passed, binding the body’s hands. “As the contemnors sensed weakening of the writ of the ECP, they didn’t bother to attend the proceedings,” it said, noting there were “many other such incidents of judicial overbearing, which have diluted the writ of the ECP.”
Amidst these circumstances, it said, questions arose over whether the ECP could perform its core functions of conducting free, fair and transparent polls and whether various institutions would take it seriously and give its directions due weightage.
Referring to The Representation of People Act 1976, the CEC wrote that Section 11 of it empowered the ECP to announce poll date unilaterally without any trace of intervention by a third party. Noting that this was amended through an ordinance in 1985 to allow one man to hold elections on a whim, it stressed that no constitutional provision granted the president the right to appoint a date for polls after the National Assembly was dissolved. “Therefore, Section 57(1) of the Act ibid to the extent of the 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 powers of the Commission mandated under Article 218(3) and 219 of the Constitution,” it added.
In light of this, the ECP proposed amendments that should be placed before Parliament for adoption. The first is in Section 57(1): “The Commission shall announce the date or dates of the General Elections by notification in the official gazette and shall call upon the constituencies to elect their representatives.” The second is in Section 58: “Notwithstanding anything contained in Section 57, the Commission may, at any time after the issuance of notification under sub-section (1) of that section, make such alterations in the Elections Program announced in that notification for the different stages of the election or may issue a fresh Election Program with fresh poll date(s) as may, in its opinion to be recorded in writing, be necessary for the purposes of this Act.”