The Election Commission of Pakistan (ECP) has no authority or jurisdiction to postpone general elections to the Punjab Assembly till October 8 especially when the Supreme Court and Lahore High Court have taken a unanimous stance that ECP has no authority to make such a decision as the election watchdog announced on March 22. After the announcement of the election schedule, it cannot be changed given Section 58 read with Section 8(c) of the Election Act, 2017 unilaterally even if ECP has jurisdiction and authority to withdraw it. To hold the election, provisions of Article 254 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) given the time-bound exercise cannot be taken care of, specifically, when it is not meant for this provision.
Also, the question in front of the apex court was simple: Can the election date be extended or not? It was remarked by CJP Bandial last Tuesday hearing PTI’s petition challenging the ECP’s decision it announced citing the deteriorating security state of affairs in the country and the non-availability of finances and security personnel. The same day, Supreme Court’s Lahore Registry heard an Instant Petition filed by Muhammad & Ahmad Law Firm raising questions about “the authority, jurisdiction and power of the ECP to announce the poll date. After the decision of the Supreme Court of Pakistan, dated 01.03.2023, ECP cannot take refuge in the binding directions contained therein.
Article 204(2) of the Constitution provides for contempt of court when any person obstructs the process of the court in any way or disobeys any order of the court. Contempt of court is cognizable under Section 4 and punishable in terms of Section 5 of the Contempt of Ordinance, 2003. Article 9 of the Constitution provides that all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court of Pakistan. Thus, a contempt petition has been filed in the apex court seeking initiation of contempt proceedings against Prime Minister Shahbaz Sharif, Chief Election Commissioner Sikandar Sultan Raja, ECP members, Punjab caretaker Chief Minister Mohsin Naqvi and others for their wilful and intentional acts to violate the apex court’s orders as such acts are punishable under the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution.
Legally, ECP cannot exercise the power of a court or a tribunal when from the scheme of law it is an administrative body. Under Article 105 read with Articles 112 and 224 of the Constitution, the elections cannot be postponed for more than 90 days as the law has been settled by the Supreme Court in judgment, dated 01.03.2023, in Suo Motu Case No.1 of 2023 and petitions No.1 and 2 of 2023. The Governor of Khyber Pakhtunkhwa (KP) after the decision of ECP cannot extend the date of the election beyond 90 days. Ironically, the governor had previously suggested 08.05.2023 as the poll date and now he has accepted ECP’s decision to hold the elections on 08.10.2023. As the President of Pakistan had fixed the date of the election as 30.04.2023 by playing his constitutional role, ECP cannot change the same by which it has violated Articles 4 and 5 of the Constitution.
As the caretaker setup is only meant for holding free and fair elections, it cannot misuse its power for transfer, posting, imposition of Section 144 of the Criminal Procedure Code, 1898, or arrest and detention of political workers. Moreover, the 90-day tenure of the caretaker government cannot be extended as it deprives the people of being governed through their chosen representatives. There is no ambiguity that the ECP direction and the letter issued by the KP governor lose applicability after the orders of the President of Pakistan for holding of election within a period of 90 days.
Article 218(3) reads: “It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly, and by the law, and that corrupt practices are guarded against.” However, ECP prejudicially, arbitrarily, illegally and unconstitutionally postponed the Punjab elections from 30.04.2023 to 08.10.2023. In the order, dated 22.03.2023, ECP said that the Commission “hereby withdraws the election programme […] and fresh schedule will be issued in due course of time with the poll date on October 8”.
On March 10, ECP wrote separate letters to the President, Dr. Arif Alvi and the KP Governor. In the letter to the President, the electoral watchdog proposed dates between April 30 and May 7 for the elections. President Alvi on the same day, announced that elections in Punjab will be held on April 30, 2023. Against the adamant attitude of the Governor, Writ Petition No. 6118 of 2023 titled Munir Ahmad vs The Governor Punjab and others was filed before the Lahore High Court with the prayers “necessary orders may kindly be issued... to immediately announce the date of the election for the Provincial Assembly of Punjab... to enforce Article 218(3) ibid so that the Election is held not later than ninety days of the dissolution of the Assembly.
The Court has developed the doctrine of time-bound legislation with its mandate to decide the matter as per the timeframe given under a statute while discussing the anatomy of authority/regulator, jurisprudential anthology regarding the duty of the State to provide expeditious justice under Article 37-D of the “Constitution”. It was remarked that a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for free people. It detailed that three things could destroy that confidence and do incalculable damage to society: (i) that people come to believe that inefficiency and delay will drain even a just judgment of its value; (ii) that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; (iii) that people come to believe the law—in the larger sense—cannot fulfil its primary function to protect them and their families in their homes, at their work, and on the public streets quotation.
The issue about ECP’s responsibility has also been elaborated in the judgment, dated 10.02.2023. A bare reading of Article 218(3) of the Constitution makes it clear that ECP is charged with the duty to ‘organize’ and ‘conduct the election’. The language of the Article implies that ECP is responsible not only for conducting the election itself but also for making all necessary arrangements for the said purpose, before election day. By conferring such responsibility on ECP, the Constitution ensures that all activities both prior, on, and after election day, that is carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, by law, and free from corrupt practices. Thus, ECP is the ultimate authority to ensure the conduct of elections by the law, and such authority is not limited to the election day or after it but also to all stages before it
In addition, the so-called caretaker government, which has been set up by ECP, is currently making countless transfers and postings, issuing orders under Section 144 of the Criminal Procedure Code, 1898, making permanent changes in the government and registering countless criminal cases against the law-abiding peaceful citizens. The caretaker government is transgressing in all broad daylight from its limited scope and prescribed constitutional mandate. Against the poll postponement, a representation has been addressed to ECP as well as the Chief Election Commissioner and all Members with regards to the withdrawal of illegal order for the postponement
Meanwhile, the International Monetary Fund (IMF) has strongly denied an impression given in ECP’s order saying that the inability to release funds for Elections was due to the IMF’s restrictions. The postponement came when the current situation of the country can only be rehabilitated with the conducting of smooth, fair, free and transparent elections in the provinces of Punjab and KP. By withdrawing its postponement orders, ECP should rather conduct the elections in KP as well as Punjab provinces as per the previous schedule announced in compliance with Article(s) 218(3) and 220 of the Constitution as well as the Supreme Court’s judgments.