Daily Times

LAHORE: There is no provision in the country’s constitution enabling the Election Commission of Pakistan (ECP) to commission deployment of armed forces for election-related duties on its own, legal experts say.

On Tuesday, the ECP issued a notification stating that troops would be deployed at polling stations from July 23 to July 27; at the Printing Corporation of Pakistan, National Security Printing Company and Pakistan Post Foundation from June 27 to July 25; along the ECP teams transporting ballot papers to and from polling stations; as well as in the form of mobile vigilance teams in constituencies.

Under Article 245 of the Constitution, the ECP can seek deployment of troops only through the relevant ministries of the federal government, said Advocate Asad Jamal, while speaking to Daily Times.

He continued, “The language of the notification suggests that the Commission is seeking deployment on its own which is not possible given the constitutional framework.”

Advocate Jamal insisted that even if the constitutional method was adopted in the matter, and the federal government through the Ministry of Defence sought deployment of troops, personnel in-charge of security duties at polling stations could not be authorised to exercise (judicial) powers of the magistrate of first-class. These powers would enable security personnel to conduct on-the-spot summary trials of people suspected of violations of the law.

The lawyer maintained that such an arrangement had not been adopted in any elections he observed over the last two decades. Recalling two relevant judgements (in Sheikh Liaqat Hussain and Mehram Ali cases), he said that there were clear court rulings on the matter. He said that sections 4 and 5 of the Anti-Terrorism Act (mentioned in the ECP notification) could be invoked only by the federal government on its own, or on the request of a provincial government. If challenged in a court of law, the ECP notification would be struck down very easily, he added.

Advocate Umer Gillani agreed with Jamal and said that the notification was ‘of dubious constitutionality’. “It confers judicial power on army officers. This runs afoul of Article 175 of the Constitution that mandates separation of the judiciary from the executive,” he said, adding that the strict separation of the judiciary and the executive was enforced by the Supreme Court in two seminal decisions catalogued by the Sharaf Faridi v. Federation titled [one passed in 1989, and the other in 1994].

Gillani recalled that the sanctity of the principle of separation of powers was why the Parliament had to amend the constitution when it sought to set up military courts in the wake of the Army Public School attack in 2014.

Published in Daily Times, July 11^th 2018.