ISLAMABAD: Like the high courts, the Election Commission of Pakistan (ECP) is armed with the discretionary power to punish any person for contempt of court but it has never exercised such powers despite the harsh criticism of its decisions by politicians.
Section 10 of the Elections Act, 2017 says the ECP may exercise the same power as the high court to penalise any person for contempt of court. In this connection, the Contempt of Court Ordinance, 2003, or any other law pertaining to contempt of court, will have an effect as if the reference to a court or to a judge were a reference to the ECP, the Chief Election Commissioner (CEC) or an ECP member.
Without exception, every major political party has lambasted the ECP whenever it felt that it had not accepted their pleas or given relief to their rivals. At times, the ECP has been put under tremendous pressure by politicians for not speedily disposing of pending cases against their adversaries.
When political temperatures rise and the political forces approach the ECP to settle contentious issues, the forum is subjected to a severe attack with the objective of getting a decision of their choice. Often, the very political parties that had recommended the appointment of the CEC or ECP members have turned against them for not giving rulings that suit their political objectives.
According to the Constitution, it is the prime minister and the leader of the opposition in the National Assembly who pick the CEC and ECP members. Even though – unlike the superior court judges-- they are selected by the politicians, their appointing authority soon finds fault with them when they fail to get decisions of their liking.
However, after their appointment, the CEC and ECP members are not supposed to be beholden to those who had selected them in making decisions; they are required to act honestly and fairly towards all.
The ECP has mostly preferred silence even when the criticism has been extremely harsh. Even when the harangues against it have been over-the-top, it has refrained from reacting strongly and has stood its ground without taking action under its contempt powers.
It was because of the intense political attacks that even a well-respected person like Fakhruddin G Ebrahim -- who had been made the CEC after a consensus across the political spectrum-- had become extremely disenchanted and tendered his resignation. This was an unprecedented step. But despite the harsh criticism he faced, he too did not open contempt proceedings against his critics.
The ECP usually comes under unparalleled focus during general elections. This time, it attracted exceptional attention because of its decisions on the aborted by-election for NA-75 Daska and the Senate polls, in which the competing parties had high stakes. Its judgments enraged the ruling party which demanded the resignation of the CEC and the ECP members. However, the government has no power to force them to leave their offices.
Under the Constitution, the CEC and its members enjoy a secure tenure of five years and cannot be removed without following the procedure laid down for the exit of a superior court judge.
