The Election Commission of Pakistan (ECP) has requested that an exception be made by the Chief Justices’ Committee to allow members of the subordinate judiciary to act as district and constituency returning officers, a function they performed in all elections since 1988. This had been banned by the committee to further the separation of the judiciary from the executive, with a decision on this deferred in its last meeting, on Monday. Meanwhile, ECP Additional Secretary Afzal Khan has said that the ECP would be solely responsible for supervising the election, and for this purpose could call in the army, the rangers or the judiciary. Mr Khan thus highlighted certain clashes within the system. The first is the reason why judicial officers were involved in an executive function. Prior to 1988, returning officers came from the executive, but they were found to be subject to influence from ruling party candidates. The induction of members of the subordinate judiciary was meant to oust such influence completely. If the ECP cannot use judges as returning officers, then who can it use? The committee’s intention, that of ensuring separation, cannot be faulted, but if the result is that the returning officers can have their neutrality impingned by losing candidates, then it cannot be positive. Secondly, a potential for confrontation is revealed: what happens if the committee tells the judges not to act as returning officers, but the ECP goes ahead and notifies them as such? Of course, such a clash is not possible between organizations headed by such eminent judicial personalities, but the potential exists.

The ECP turned to judicial officers not because of their repute for honesty, but because returning officers have to adjudicate in disputes between candidates, and their decisions may well go all the way up to the ECP itself, and even to the Supreme Court. It therefore makes sense for judicial officers to be made ROs.

The judiciary wants a fair election conducted, as required by the constitution, as reflected in its decision in the Asghar Khan case, through which it ousted military interference. For a truly neutral election, it must trust the ECP’s judgment and be ready to provide it the help it needs from it. If that means a relaxation of policy, it should be willing to do so. After all, the other changes that have been made by the policy, such as preventing judges from serving on executive posts in law departments, remain unchallenged.