Daily Times

The Election Commission of Pakistan (ECP) is an important institution established under the Constitution of Pakistan. Article 218 (3) of the Constitution states that it shall be the duty of the ECP to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, and fairly, following the law and that corrupt practices are guarded against.

The Constitution under Article 219 has also prescribed the functions that Election Commission shall be charged with: preparing electoral rolls for election to the National Assembly, Provincial Assemblies, and local governments; revising such rolls periodically to keep them up-to-date, organizing and conducting an election to the Senate or to fill casual vacancies in a House or a Provincial Assembly, appointing Election Tribunals; and holding general elections to the National Assembly, Provincial Assemblies, and local governments. As per Article 220 of the Constitution, it shall be the duty of all executive authorities in the Federation and the Provinces to assist the Commissioner and the Election Commission in the discharge of their functions.

Simultaneously, the Parliament has not specifically given any legal power to the Election Commission Article 218(3) of the Constitution or under the Election Act 2017 to determine to inquire into and decide upon the matter of pre-election qualification or disqualification of a returned candidate, and where there is no such legal power available or given or prescribed in law, and if any such order is passed by the Commission relating to the determination of qualification or disqualification concerning Articles 62 and 63, that would not be an order being competently passed under the Constitution or law and would not be legally maintainable.

According to Constitutional provisions and law, the ECP lacks jurisdiction to determine the eligibility or disqualification of a member of Parliament or Assembly for inquiring into and deciding on the matter of pre-election qualification of a contesting candidate or disqualification of a returned candidate, and such an order would be very difficult to legally sustain before the Superior Courts because the ECP is an administrative forum to conduct the election honestly, justly, fairly, and accurately.

Parliament, on the other side, has the legislative competence to confer such jurisdiction on the Election Commission in terms of a law made under Article 222 of the Constitution, this legal power must be done explicitly, through express conferment, and by using clear language in Constitution and law. In other words, the jurisdiction relating to the question of qualification or disqualification could only be determined through clear and dedicated written procedures prescribed in Constitution and law but not impliedly.

It is also important that as the question of qualification or disqualification arises as part of an election dispute and is thus considered directly by the Commission in terms of Article 218(3), the provisions of Article 225 need to be kept in mind, and that no one can be declared dishonest without the examination or appreciation of proper evidence against him by a Court of law. Thus there is no legal ambiguity that declaration under Article 62(1) (f) of the Constitution could only be given by a Court of law and not by Election Commission.

The two recent judgments of the Supreme Court of Pakistan against the decisions of the Election Commission of Pakistan relating to determining and inquiring into and deciding upon the matter of pre-election qualification and disqualification of a returned candidate would have a long-lasting effect on the Constitutional and political spectrum of Pakistan in future. The Supreme Court has applied the correct legal interpretation of the Constitution and law that ECP has no jurisdiction under Article 218(3) of the Constitution to inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate by declaring that there is no power or jurisdiction inherent in the Commission itself in terms of Article 218(3) to consider the qualification or disqualification of a candidate or member of Parliament or assembly.

According to Constitutional provisions and law, the ECP lacks jurisdiction to determine the eligibility or disqualification of a member of Parliament or Assembly for inquiring into and deciding on the matter of pre-election qualification of a contesting candidate or disqualification of a returned candidate, and such an order would be very difficult to legally sustain before the Superior Courts because the ECP is an administrative forum to conduct the election honestly, justly, fairly, and accurately.

The important mandate given by the legislatures to Election Commission is to create an impartial electoral framework and credible electoral administration and process for free, fair, credible, and transparent elections in Pakistan. It is as well a constitutional and legal requirement that the elections in the country be held, organized, and conducted honestly, justly, fairly, and by the constitutional provisions, and that every participant in the election process should provide an equal playing field during the whole election process. Thus, the Election Commission must take all necessary steps to ensure the implementation of election laws and rules before, during, and after the election to ensure that the entire election process is built on trust, credibility, and fairness, which are critical for the continuity of and good democracy in Pakistan.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com