ISLAMABAD: The Supreme Court has declared that the constitutional duty of the Election Commission of Pakistan (ECP) to hold elections as required (honestly, justly, fairly) does not and cannot convert it into a power vis-à-vis other constitutional provisions.
A three-judge bench on Friday released its detailed judgment of its short order dated April 4, 2023.
The judgment authored by Justice Munib Akhtar said that under Article 218(3) of the constitution the Election Commission owed duty to the nation at large, to the electorate, and to the political parties. Not just the petitioners, but the whole of the electorates of the Punjab and KPK provinces and the citizens are the aggrieved persons of fundamental rights under Article 17.
The court stated that Article 218(3) does not merely impose a duty to hold elections; it requires that they be held honestly, justly and fairly.
The constitutional duty to hold elections as required (honestly, justly, fairly) does not, and cannot, convert the duty into a power vis-à-vis other constitutional provisions. That would, constitutionally speaking, make the Commission master of all matters electoral. “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,” it added.
The holding of elections cannot be placed at the will, ie, power of any particular agency or forum, and howsoever exalted its creation or position may be. Because democracy demands elections the Constitution commands elections. Democracy is meaningless without such an exercise, repeated periodically as required by the Constitution.
The other duty, of holding the elections, is imposed on the Commission, under Article 220 that binds the executive branch to assist the commission in the performance of its functions. “In their own terms, both duties are mandatory. But the Commission cannot read one constitutional duty as conferring upon it the constitutional power to negate the other, and thereby convert what is mandatory into something that is only directory.”
“The effect of an early dissolution is reflected in Article 224 itself, and of course the then Chief Ministers of Punjab and KPK Provinces exercised their respective powers in the instant case. Now, if the central submission by learned counsel for the Commission were accepted, then the latter could take the stance that in order for it to meaningfully fulfill its constitutional duty under Article 218(3) it had the power to require that all elections be held on the same day (or very close together).
“Indeed, that is, in effect, what was argued before the Court. If so, that would mean that the Commission has a constitutional veto power over the expressly stated power to advice dissolution.
One would have the unseemly spectacle of the prime minister or a chief minister, as the case may be, coming (as it were) cap in hand to the Commission, seeking its permission or preclearance before advising dissolution. This would be a negation of the constitutional powers conferred upon them. This cannot be what is contemplated by the constitutional scheme.“
The judgment said that Sections 57 and 58 of the Election Act, 2017 do not (nor could) empower the Commission to extend the date of the general election beyond the 90 days period.
The time period(s) imposed by Article 224 for the holding of general elections 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.
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 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.
It is not for the Commission to seek guidance or to make best efforts. This is a negation and inversion of Article 220. It is for the Commission to exercise a constitutional power and for the executive authorities to fulfill a constitutional duty.
It said what could the Commission do if the executive authorities failed or refused to fulfill their constitutional duties under Article 220? 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. It was for the Commission to speedily approach this Court for relief in the shape of a writ of mandamus.
Copyright Business Recorder, 2023
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