CEC wants powers back to fix poll date

ISLAMABAD: Chief Election Commissioner Sikandar Sultan Raja on Monday wrote to the Senate chairman and the NA speaker, urging legislation to give powers back to the Election Commission of Pakistan to fix the election date, suggesting two key amendments in this context.

He detailed out in the letters, separately written (with the same text) to Senate Chairman Sadiq Sanjrani and NA Speaker Raja Pervez Ashraf, how the Supreme Court of Pakistan verdicts on March 1 and April 5 had divested the commission of its constitutional powers to determine as to whether a conducive environment and circumstances exist for the conduct of elections in a given time.

The proposed amendments (enclosed in the letters) are to Section 57 (1): the commission shall announce the date or dates of the general elections by notifications 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 Sub-section (1) of that section, make such alterations in the Elections 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.

The CEC urged the custodians of the two legislatures to place before the parliament these amendments for adoption. He wrote that the role of the president to appoint a date for poll in the case of dissolution of the National Assembly on the advice of the prime minister or the dissolution of the lower house on expiry of the term, is not supported by any constitutional provision. He argued that 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. He also dwelt upon the way, the commission’s powers were eroded, citing the Daska and some other cases and how inquiry against the corrupt officials involved in that by-election was stayed and finished. He contended that the conduct of elections is dependent upon necessary arrangements to be made by the commission to ensure that the standards of honesty, justness, fairness provided in Article 218(2) are met that 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.

Perhaps for the first time, commenting on the apex court judgments, he said the judgments of March 1 and April 5 divested the commission of its constitutional powers to determine as to whether a conducive environment in facts and circumstances, exists for the conduct of polls in a given time, to meet the standards mentioned in Article 218 (3). He noted that the commission consistently strived to uphold the writ of law, fair play, and merit in letter and spirit. However, he emphasised that the commission’s writ has been systematically challenged on several occasions. He says in the letter, “In practice, the ECP’s authority has been eroded.”

The chief election commissioner chose to make mention that key disciplinary interventions made by the commission in the past were stayed and set aside, which gave ‘wayward functionaries’ the message of hiding behind legal orders despite committing ‘serious irregularities in discharge of their official functions’. “As a case in point; the commission decided against all odds to take the Daska incident head on. In the face of clear resistance from government functionaries and officials at the highest level, the commission, after two comprehensive inquiries, initiated action against the relevant miscreants to take them to book. The action sent a message to the administrative machinery that the commission would not tolerate gross violations in its stride and would make all efforts to uphold the writ of law. This was the reason that most of the by-elections later on were lost by the sitting provincial government of the time and all stakeholders accepted the results as the government functionaries were receptive and accountable to the ECP. However, instead of augmenting the legal process, the Daska disciplinary proceedings were stayed and ultimately set aside, although Section 55 of the Elections Act, 2017 gives the requisite powers to the ECP. Consequently, the message that went out to the recalcitrant functionaries was that they could hide behind these legal orders despite committing serious irregularities in discharge of their official functions. Thus the ECP writ was compromised severely.

The CEC contended the commission’s writ was severely compromised at the time and that now the Punjab elections were round the corner and civil servants had been appointed District Returning Officers (DROs), Returning Officers (ROs) and Assistant Returning Officer (AROs): In the circumstance, why would they look up to the ECP? The chief election commissioner made a point also by referring to the threats hurled at the commission and the chief election commissioner and ECP members, and wrote, “The CEC and ECP members were subjected to life threats and their family members were publicly harassed. When this reached a point of no return, the commission was forced to start contempt proceedings against the contemnors and notices were issued. Yet again stays were granted even on issuance of show cause notices, although there were no final orders against which the stay could be issued.”

He continued that because of this, the contemnors did not ‘bother to attend the proceedings and mentioned other such incidents of judicial overbearing, which had diluted the writ of the commission. He wondered that in the given environment, could the commission perform its bedrock duty to conduct free, fair and transparent elections, questioning whether administrative functionaries, political representatives and other institutions took the commission seriously and gave its directions due weightage?

“The Election Commission of Pakistan (ECP) is an independent constitutional body constituted under Article 218 (2) of the Constitution and is obligated under Clause 3 of the Article ibid to organize and conduct elections and 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 court in the judgments while interpreting Article 224 (2) has held that the conduct of general elections within 90 days is a constitutional imperative. It is a settled and trite law that the 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 wrote.

He said in the letter that however, due weight 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. The conduct of election is dependent upon necessary arrangements to be made by the commission to ensure that the standards of honesty, justness, fairness provided in Article 218(3) are met.

“There are many other such incidents of judicial overbearing, which have diluted the writ of the ECP. In such a situation where the ECP’s writ has been time and again perceptibly compromised, the question arises: (a) Can the ECP perform its bedrock duty to conduct free, fair and transparent elections, to the best of its ability, in the given environment? (b) Will the administrative functionaries, political representatives and other institutions without which the conduct of free, fair and transparent elections is not possible, take the commission seriously and give its directions due weightage? “And finally, in such conditions through the administrative functionaries and other institutions, is it possible to hold elections in Punjab and KP followed by the main elections in an effective and transparent manner,” he said.

The letter says the important role and duties of the commission under the Constitution are acknowledged by the apex court in the famous “Worker’s Party Case” reported in PLO 2012 SC 681 and has held in para 40 that: “The election commission is responsible not only for conducting the elections itself but also for making all necessary arrangements for the said purpose, prior to the election day. By conferring such responsibility on the election commission, the Constitution ensures that all activities both prior, on and subsequent to the election day, that are carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, in accordance with the law and free from corrupt practices.”

Similarly, in para-3 of the judgment in the Al-Jihad Trust case reported in PLO 1997 SC 84, it has been pointed out that the elections have to be held strictly in accordance with the law justly, fairly, and honestly. People who are responsible to organize such elections are bound under the Constitution and the law to be impartial, neutral and honest to the greatest possible extent in the discharge of their sacred duties. It has been emphasized by the Constitution that corrupt practices are to be guarded against. This is indeed a Herculean job to be done by the chief election commissioner. It cannot be said that he is subordinate to any authority while doing his duties in holding free, fair, and transparent elections. In its own rights, the parliament shall be all powerful in the field of law making within the limits prescribed by the Constitution.

The letter says the legislative history reveals that the parliament [Majlis-e-Shoora] enacted the Representation of People Act 1976 to enable the commission to exercise its powers, functions and duties as mandated under Article 218 (3) and 219 of the Constitution. Section 11 of the original Act of 1976 empowered the commission to announce poll date unilaterally without any trace of intervention by a third party. The section ibid 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. The role of president under the Constitution to appoint a date, not later than 90 days from the date of dissolution of the National Assembly, for holding the general elections to assemblies 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, in accordance with the provisions of the Constitution, as ascertained in a session of the National Assembly summoned for the purpose.

Similar letters have been written by the commission’s secretary to the principal secretary to PM and the secretary to the Ministry of Parliamentary Affairs.