ECP derailed democracy by not holding polls: Supreme Court

ISLAMABAD: The Supreme Court (SC) Friday held that it was the responsibility of Election Commission of Pakistan (ECP) to hold elections for public, political parties and for electorates besides holding that the electoral body itself could not extend the date for elections.

A three-member apex court bench, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen and Justice Munib Akhtar, issued detailed reasons in its verdict, announced on April 4 in the petitions including filed by Pakistan Tehreek-e-Insaf (PTI) challenging the ECP order postponing elections in Punjab till October 8.

The court had declared as unconstitutional the ECP order, passed on March 22, 2023, postponing the election in Punjab till October 8 and fixed May 14, the date for polls in the province.

“For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, the impugned order dated 22.03.2023 (“EC Order”) made by the Election Commission of Pakistan (“Commission”) is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed,” the court had announced on April 4, 2023.

The court had unanimously held that the neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90-day period as provided in Article 224(2) of the Constitution.

The court held that the polls would be held in Punjab on May 14 and directed the federal government to provide and release the sum of Rs21 billion to the Election Commission for the purpose of the general election to the Punjab and Khyber-Pakhtunkhwa assemblies.

In its 25-page detailed reasons, authored by Justice Munib Akhtar, the court held that it was not just the petitioners formally before this court but the whole of the electorate of the Punjab and Khyber-Pakhtunkhwa provinces and the citizens, who live there and who are the aggrieved persons in respect, inter alia, of fundamental rights conferred by Article 17 of the Constitution.

On the constitutional plane, the Commission is not the master but rather the forum or organ that the Constitution has chosen to perform the task that lies at the heart of constitutional democracy,” the court held.

The court noted that holding of elections could not be placed at the will, i.e., power (howsoever bonafidely expressed or exercised) of any particular agency or forum, and howsoever exalted its creation or position may be.

“Because democracy demands elections, the Constitution commands elections,” the judgment noted adding that democracy is meaningless without such an exercise, repeated periodically as required by the Constitution.

The court held that to concede to the Commission the power, especially on the constitutional plane, to interfere with the electoral process in so fundamental a manner could be tantamount to derailing democracy itself, with incalculable consequences.

The court noted that the power to alter the election programme is circumscribed and not open-ended, adding that it can only be exercised if “necessary for the purposes of [the 2017] Act” and not otherwise. Furthermore, the power conferred comprises of two distinct limbs, which operate separately from each other.

“Accordingly, we are of the view that the time period(s) imposed by Article 224 for the holding of general election 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 2017 Act, and certainly not in the manner and for the duration as has been done through the impugned order,” the court held.

“In its relationship and interaction with other constitutional provisions, the court noted that Article 218(3) cannot and does not operate as any sort of constitutional power enabling the Commission to render them nugatory or to override them or deny them their due application,” says the detailed judgment.

“It is a matter of regret that the Commission failed to appreciate Article 220 in its true perspective, and did not fully understand its constitutional meaning and import,” the detailed judgment reads. The court held that constitutional relationship between the Commission and the executive authorities in the context of Article 220 unambiguously and unequivocally gives the upper hand to the former and not the latter.

“Regrettably, when the record is examined, it appears that the Commission acted as though the constitutional position was the reverse,” says the judgment, adding that the impression created is not that of a constitutional organ robustly and muscularly exercising a constitutional power in relation to those on whom the Constitution has imposed an express duty in this regard.

“It is a matter of regret that the Commission failed completely to appreciate its constitutional authority vis-à-vis the executive branch in the context of this provision,” says the judgment adding that the result was that where (i.e., in relation to Article 224) the Commission did not have any power, it misread its constitutional duty under Article 218(3) as conferring such a power, but where it did have a constitutional power to require fulfilment of a constitutional duty it failed to assert itself.

But, it could be asked, what could the Commission do if the executive authorities failed or refused to fulfil their constitutional duties under Article 220?

The court noted that the answer, on the constitutional and legal plane, is clear. It was not for the Commission to (metaphorically) wring its hands and then, bowed under the weight of its own professed inability to persuade or cajole the executive authorities to obey the constitutional command of Article 220, pass an unconstitutional order pushing forward the election by several months. “The legal path was clear and it was for the Commission to speedily approach this Court for relief in the shape of a writ of mandamus,” says the judgment, adding that “the point here is that even if we focus only on the Commission’s (legally erroneous) conclusion that it could not conduct the general election consistently with its duty under Article 218(3), there was a legal path”. 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. “What would be the situation if, a general election being due and an election date announced and schedule released and acted upon, at the eleventh hour (or, perhaps, close to it) there is an emergent situation that requires an extension of the election date? “The situation could simply fall within the four corners of the 2017 Act, in which case it could be dealt with in terms of the first limb of s. 58 (subject to the limitations noted above),” the court noted.

But the question here is whether, as the Commission purported to do (in the second last recital of the impugned order), the election date could be taken beyond the constitutional time period under cover of Article 254,” reads the judgment. That is what the Commission has asserted. Article 254 provides as follows: “When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.” The court noted that the stance taken by the Commission is, with respect, erroneous. Firstly, it is in a sense self-contradictory. If (as erroneously claimed) Article 218(3) had overriding effect even in relation to other constitutional provisions, thus reducing the time periods given in clauses (1) and (2) of Article 224 to be merely directory, then the election(s) covered by that Article would not be an act or thing required to be done within a particular period.

“Therefore, no recourse would need to be taken to Article 254. But, secondly and more importantly, at least in the present context, Article 254 is merely a saving provision, i.e., it prevents the act or thing required mandatorily to be done within a prescribed period from becoming unconstitutional if not so done,” says the judgment.

The court held that the provision does not, however, confer a power on an authority or forum required to do the act or thing to unilaterally extend the period, or shield any purported extension from judicial scrutiny and (if so found appropriate) legal condemnation.

If at all, to revert to the question posed at the beginning of this para, such a situation arose in the present context and no solution was available in terms of the 2017 Act (which it was not) then the only legally viable course for the Commission would, again, be to itself seek remedy under Article 184(3),” the court noted.

The court noted that it would then be for the Court to decide, on the merits of the case, whether there was any constitutional or legal justification for going beyond the period stipulated in Article 224.

The court held that a judicial finding in the affirmative, coupled with Article 254, would then be the legally permissible route enabling the act or thing to be done beyond the stipulated period.