ISLAMABAD   -   The Supreme Court of Pakistan Friday de­clared that the constitu­tional duty of Election Commission of Paki­stan (ECP) to hold elec­tions as required (hon­estly, justly, fairly) does not and cannot convert it into a power.

On this matter, a three-mem­ber of the apex court 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 ECP owed duty to the nation at large, to the elec­torates, 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 judgment said 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 electoral matters.

It added that 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 hold­ing of elections cannot be placed at the will, i.e., 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.

It further said that the other duty, of holding the elections, is imposed on the Commis­sion, and binds the executive branch to assist it in this re­gard. 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 judgment further said that 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 fulfil 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 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 continued that 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. The court said that 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 fulfil a constitu­tional duty. It said that what could the Commission do if the executive authorities failed or refused to fulfil 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.