The Election Commission of Pakistan (ECP) has sought amendments to the Elections Act, 2017 that will empower the electoral watchdog to announce poll dates unilaterally, without it having to consult the president.
The request for amendments was made in letters written by Chief Election Commissioner Sikandar Sultan Raja and ECP Secretary Omar Hamid Khan to Principal Secretary to Prime Minister Dr Syed Tauqir Hussain Shah, Parliamentary Affairs Secretary Muhammad Shakeel Malik, National Assembly Speaker Raja Pervaiz Ashraf and Senate Chairman Sadiq Sanjrani on Monday.
The letters, copies of which are available with Dawn.com, referred to the “controversy” regarding elections to Punjab and Khyber Pakhtunkhwa assemblies. ECP officials particularly cited two Supreme Court (SC) judgements in this connection, issued on March 1 and April 4.
In its March 1 verdict, the SC had ruled that elections in KP and Punjab — both of which have been under caretaker governments since the provincial assemblies were dissolved in January — should be held within 90 days.
However, after the ECP announced in March that elections in Punjab would be deferred till October, the SC issued another ruling on April 4, declaring the commission’s decision “unconstitutional” and fixing May 14 as the date for polls in the province.
In their letters today, the ECP officials maintained that according to the Constitution, the commission was the “sole arbiter” to decide whether the circumstances existed to conduct elections or not and this mandate was not “subordinate to any authority”.
The SC’s March 1 and April 4 judgements, on the other hand, “have divested the commission of its constitutional powers to determine as to whether conducive environment in facts and cirtcumstances exists for the conduct of elections in a given time to meet the standards mentioned in Article 218 (3)” of the Constitution, the letters said.
They further stated that under Article 218 (3), the ECP was obligated to “organise and conduct elections and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with the law and that corrupt practices are guarded against”.
The ECP officials also lamented that while the institution had “consistently strived to uphold the writ of law, fair play and merit in letter and spirit”, these “exemplary efforts” were not supplemented and rather its “writ has systematically been challenged on several occasions”.
“In practice, the ECP’s authority has been eroded,” the letters read.
Complaining that the disciplinary proceedings initiated by the ECP in connection with the `by-polls held in Daska in 2021 were set aside, ECP officials said the “writ of the ECP was compromised severely”.
Moreover, the ECP officials also took exception to the issuance of stay orders in contempt proceedings issued by the electoral watch dog.
And “there are many other incidents of “judicial overbearing” that had “diluted the writ of the ECP,” their letters stated.
They questioned that in such a situation, could the commission perform its duty to conduct free and fair elections in the given environment and whether administrative functionaries, political representatives and other institutions took the commission seriously and gave weight to its directions.
“And finally, can in such conditions, through the administrative functionaries and other institutions, is it possible to hold the elections in Punjab and KP followed by the main elections in an effective and transparent manner?”
In their letters, the ECP officials recalled that parliament had enacted the Representation of People Act, 1976 to enable the commission to exercise its powers, functions and duties as mandated under Articles 218(3) and 219 of the Constitution.
They added that Section 11 of the said Act empowered the ECP to announce the poll date unilaterally, “without any trace of intervention by a third party”.
However, this section was amended through an ordinance in 1985 “with the sole object to create the role of the president to hold the elections at the whims of one man”, they said.
However, they added, this role of the president to announce an election date not later than 90 days after the dissolution of the National Assembly “triggers where the National Assembly is dissolved by him (president), in his discretion where, a vote of no-confidence having been passed against the prime minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly”.
The ECP officials contended in their letters that the “role of the president to announce an election date in case of the dissolution of the National Assembly on the advice of the prime minister or the dissolution of the National Assembly on the expiry of its term, is not supported by any constitutional provision”.
The letter further said the amemdment made to Section 11 of the Representation of People Act was also replicated in Section 57 (1) of the Elections Act, which states that the president shall announce the date of elections after consulting the ECP.
“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 is felt that supplanting/instituting these amendments have resulted in dilution of the authority of the constitutional mandate vested in ECP on account of Article 218(3),” the letters read.
In light of these observations, the ECP urged that following amendments may be placed before parliament for adoption:
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.
Section 58: Notwithstanding anything contained in Section 57, the commission may at any time after the issuance of notification under subsection (1) of that section make such alterations in the election programme announced in that notification for the different stages of the election or may issue a fresh election programme with fresh poll date(s) as may in its opinion to be recorded in writing be necessary for the purposes of this act.
