The Supreme Court on Friday regretted that the Election Commission of Pakistan (ECP) had failed to 'appreciate its constitutional authority' vis-à-vis the executive branch in the context of Article 220 of the Constitution in the Punjab polls case.
The article says that it shall be the duty of all executive authorities in the federation and provinces to assist the commissioner and the ECP in the discharge of his or their functions.
The 25-page detailed judgment, authored by Justice Munib Akhtar, in a matter wherein a three-judge bench led by Chief Justice Umar Ata Bandial held that elections of the Punjab Assembly should be held on May 14, said it was 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, it added.
The top court added that regrettably, when the record is examined it appears that the electoral watchdog acted as though the constitutional position was the reverse.
"The impression created is not that of a constitutional organ robustly and muscularly exercising a constitutional power in relation to those on whom the Constitution has imposed an express duty in this regard. The impression, rather, is almost that of a supplicant timorously approaching a superior," it maintained.
For example, in a recital appearing on the printed Page 6 of the impugned order, it is recorded that the commission “approached the federal government to provide necessary guidance".
The judgment also noted that it is not for the commission to seek guidance or to make the best efforts. “This is a negation and inversion of Article 220. It is for the commission to exercise constitutional power and for the executive authorities to fulfil a constitutional duty."
The judgment further noted that it could be asked, 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 order added.
The top court further noted that the legal path was clear. It was for the ECP to speedily approach the SC for relief in the shape of a writ of mandamus.
"Any such petition would of course be decided on its own merits in accordance with law. The point here is that even if we focus only on the Commission’s (legally erroneous) conclusion that it could not conduct the general election consistently with its duty under Article 218(3), there was a legal path. Rather than being diverted into making an unlawful order in purported exercise of a power that did not exist on the constitutional plane, the Commission ought to have pursued the legal remedy readily available,” the order added.
The judgment also stated that the electoral watchdog contends, Article 218(3) does not impose a duty to merely hold elections; it requires that they be held honestly, justly and fairly.
“And that confers on, or at least implies in, the Commission a power even in relation to other constitutional provisions: the power to decide whether and when it can do so. It is only when the Commission itself is so satisfied that it will act in the discharge of its constitutional duty and if that upends other constitutional provisions then so be it,” it further read.
During the course of arguments learned counsel for the commission was asked that if his stance be correct, then the ECP could withhold elections for an indeterminate period on the ground of an expressed inability to hold them honestly, justly and fairly.
"Would that be constitutionally permissible? To this question, which in our view goes to the very root of the matter, no satisfactory answer was, with respect, forthcoming. There is an obvious reason for this: no satisfactory answer can be given,” the apex court said.
The SC order also noted that “the holding of elections cannot be placed at the will, ie, power (howsoever bonafidely expressed or exercised) of any particular agency or forum, and howsoever exalted its creation or position may be. Because democracy demands elections the Constitution commands elections”.
“We are of the view that the time period(s) imposed by Article 224 for the holding of general elections cannot be extended by the ECP 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 added.
The SC further noted that in its relationship and interaction with other constitutional provisions, Article 218(3) cannot and does not operate as any sort of constitutional power enabling the commission to render them nugatory or to override them or deny them their due application.
"No reading, holistic or otherwise, can end in a result that diminishes other constitutional provisions to the point that relegates them to being mere handmaidens to Article 218(3). That would be a travesty. This aspect of the decision is reflected in para 1 of the short order. It was noted in the earlier short order and the detailed reasons for the same that the 90-day period would inevitably be crossed and a certain margin was therefore granted in this regard, which resulted in the election date of 30.04.2023,” it added.
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