ISLAMABAD: The Election Commission of Pakistan (ECP) contended that the framers of the Constitution have given the judicial institution a pivotal role in safeguarding and preserving the Constitution, but have at the same defined the ambit and scope of judicial intervention under sub-article 2 of the Article 175 of the Constitution.
The ECP, on Wednesday, filed a petition in the Supreme Court seeking a review of its order on holding polls in Punjab on May 14. It asked the Court to recall its impugned judgment dated 04.04.2023, in the interest of justice and equity.
The petition said that the superior courts of the country have been granted a special power under Article 199 and Article 184(3) of the Constitution to judicially review actions/decisions of the public bodies. As per trite law of this land, while exercising the power of judicial review, superior courts look at the process of arriving at a decision but never substitute their own decisions in lieu of the public bodies.
This division of power between different organs, popularly known as trichotomy of powers, is the hallmark of the Constitution and essential sine qua non for the smooth and efficient functioning of the country.
This well-embedded constitutional concept isolates the three organs from interfering and treading into the domain of the other. The judicial institution has been conferred the power to judicially review the actions and decision of the executive while at the same time being restrained from exercising the executive authority itself.
Constitutional democracy, which is a salient feature of the Constitution, rests upon the honest fulfilment of a duty conferred by the Constitution upon the Commission – a specialised body formed for the very purpose of holding and conducting elections.
It is submitted with utmost humility that under no provision of the Constitution or the law, the Honourable Court could have taken such an exercise upon itself to appoint the poll date. The Constitution is an organic document; it blossoms and evolves with time. The appointing of date or changing it is an executive exercise, and certainly not a judicial exercise.
The Court, respectfully submitted, should have exercised judicial restraint and could have apportioned responsibility to the Commission as it had exercised such powers of modification as the Honourable Court did in its order of 01.03.2023 by interpreting the constitutional and the legal provisions.
It said that a strong and empowered Commission is essential for a strong constitutional democracy in the country. Without a strong Commission, the honesty, fairness and above all, the integrity of the elections cannot be ensured.
Empowerment of the Commission must have been playing in the minds of the framers of the Constitution when enacting proviso to Article 222 of the Constitution by stating that while legislature can promulgate laws relating to elections and related activities but no such law shall effect of taking away or abridging any of the powers of the Commission under the Constitution.
The petition said the announcement of election date by the President under Section 57, stemming from sub-constitutional legislation, cannot be read in such a manner that the ECP’s ultimate constitutional powers stand overridden, diluted or bypassed.
Nor could this Court, which has all along tried to widen the scope of Commission’s power, clip or restrict constitutional domain of the Commission for holding free and fair elections in the country.
It stated that as per the settled law of this land, the Commission being a constitutional body deserves respect and its decisions, being a specialized body, need to be sanctified and not substituted by the Court. The Honourable Supreme Court is not an appellate forum over the decisions of the Commission.
The ECP maintained that without prejudice, if the decision of the ECP was in any way unreasonable, or the process of reaching the decision was in some manner defective or improper, the Court in the judicial review could have directed the Commission to give its decision again after applying its mind to the matter in accordance with the lawful parameters.
It was not open to the Honourable Court to wade into the sphere of power and independence of the Commission by appointing an election date itself and venturing into issuing the election programme.
The Commission can only perform its constitutional duties and functions if the requisite aid and assistance by the executive authorities in the Federation and the Provinces is given. However, undoubtedly such assistance had to be ‘timely’, ‘comprehensive’ and ‘complete’. As of today, neither the funds have been released nor security concerns of the Commission have been met.
It cannot be doubted that Article 218(3) contains a higher norm than Article 224 (entailing 90 days period for holding elections) as it contains the foundational principles for creating a meaningful constitutional democracy in the country.
The ECP submitted that the apex court in the case of Presidential Reference No 1 of 2020 while interpreting as to whether the elections to the Senate should be held through secret ballot as mandated under Article 226 of the Constitution, held that as the constitutional duty contained in Article 218(3) was paramount therefore, Article 224(2) of the Constitution has to give way to Article 218(3) of the Constitution to ensure that corrupt practices are guarded against.
In humble submission of the Commission, the duty to hold elections within 90 days is a constitutional imperative and command which cannot and should not be ignored but at the same time the duty to hold elections honestly, freely and fairly is fundamental to the very existence of the Constitutional Democracy.
Punjab and KPK have 173 and 55 National Assembly seats respectively out of 326 total seats, which make it about 53 per cent of the total for Punjab and 16 per cent for KPK (cumulatively about 72 per cent) of the total strength.
The general elections to the National Assembly are due in the near future, as National Assembly is completing its term in August 2023.
In order for the Commission to perform its constitutional duties to conduct the general elections honestly, justly, fairly and in accordance with the law, the Commission requires the government machinery which is non-partisan and has no inclination towards any political party.
Copyright Business Recorder, 2023
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