LHC suspends ECP notification on appointing officers from executive for election duty

'In present scenario general elections may not give desired results which may undermine future of democracy': Judge

LAHORE:

The Lahore High Court (LHC) has suspended the Election Commission of Pakistan (ECP) notification appointing district returning officers (DROs), returning officers (ROs), and assistant returning officers (AROs) from the executive for rendering duties during the upcoming general elections.

Presiding over the hearing a day earlier, LHC’s Justice Ali Baqar Najafi sent the matter to the LHC’s Chief Justice Muhammad Ameer Bhatti for the constitution of a larger bench.

Justice Najafi was of the view that the importance of the legal interpretation of the constitutional provisions having a legal effect is deeply connected to the currently raised national issue.

“Undoubtedly, the holding of general elections costs this poor nation billions which may be wasted if the election results are not accepted by major political parties. The intention of the Election Commission to conduct a free, fair, impartial election is yet to be transformed into reality by providing equal opportunities to the candidates for conveyancing and voters to vote with their choice without fear of anyone,” the judge observed today.

“In the present scenario general elections may not give the desired results which may undermine the future of democracy in our country," the court stated further.

Justice Najafi, after hearing detailed arguments from all sides, initially reserved the decision and later issued the order after working hours.

“On the factual ground, the apparent absence of a level playing field for the political party of the petitioner is visible to all and has also been seriously noted by many independent groups. With the top political leadership in jail or gone into hiding, the electioneering by his political party would be a big question mark,” Justice Najafi observed.

The order further added that the “apprehension of the petitioner of avoiding fair and free elections by the Election Commission of Pakistan appears to be well founded as some district returning officer, returning officers and assistant returning officers are appointed from the presently posted members of administration throughout the country with whom the petitioner’s political party does not inspire any confidence”.

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The hearing

The petitioner’s counsel, during the hearing, requested the court to direct the ECP to initiate a consultation process with the LHC’s chief justice regarding the appointment of judicial officers as DROs and ROs under Sections 50 and 51 of the Elections Act 2017 for the general Elections in 2024.

He further prayed the court to restrain the ECP, during the pendency of this plea, from appointing these officers from the executive authorities of the government.

The petitioner’s counsel implored the court that although the announcement of the elections has resuscitated the hope of survival of democracy and democratic values in Pakistan, it is hard to gloss over the fact that the general elections in 2024 will be held beyond the constitutionally mandated period and that the national mood, regarding these much-anticipated elections, is of scepticism and refrains jubilation.

“These elections will be held amidst the worst crackdown in our national history on the civil liberties and constitutional protections of the citizens of Pakistan”, the petitioner’s lawyer remarked.

The counsel protested to the court that Pakistan Tehreek-e-Insaf (PTI), the largest and most popular party in Pakistan, has been a victim of discrimination and the deliberated scheme of the caretaker governments in both, the federal and provinces are suppressing the democratic and nationalist spirit of PTI as well as its supporters.

He claimed that in the province of Punjab, the caretaker Chief Minister Mohsin Naqvi has influenced the bureaucracy against PTI, its leaders and political workers and that the official orders/statements issued on social media or otherwise clearly demonstrate the bias as well as the will to eliminate the party from the political landscape of Punjab. He further remarked that the federal government has treated the party with equal heavy-handedness.

“Ever since the regime change and more particularly the appointment of caretaker governments in Punjab and the federation, PTI has been at the receiving end of the worst form of political victimization and persecution and that too is state-sponsored. The caretaker governments have grossly abused the executive power to prosecute and arrest to engineer the political landscape of the country,” the petitioner’s counsel maintained.

He further argued that there is a concerted attempt to annihilate the PTI as a political party. The law enforcement agencies (LEAs), under the caretaker government, have used the executive power of arrest as the chosen weapon of assault against PTI and added: “The large-scale operations against PTI in the last few months have resulted in the arrests of hundreds of political workers associated with PTI including women and senior citizens in successive frivolous criminal cases”.

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The counsel further contended that the caretaker governments have made frequent transfer postings in the bureaucracy. “The Elections Act 2017 places an express restriction on the transfer-postings of the officers but, the governments have recklessly disregarded this statutory test”, he maintained.

The lawyer informed the court that Sections 50(1)(b) and 51(1) of the Elections Act 2017 stipulate that the ECP shall appoint DROs and ROs by the selection from the government officers in violative of Article 218 (3) of the Constitution and liable to be declared unconstitutional.

“The appointment of executive officials as DROs and ROs amounts to sanctioning a dominant role for the government in the process of electioneering at the expense of the independent role assigned to ECP under the Constitution and erodes the constitutional command of free and fair and justly conducted elections under Article 2018 of the Constitution”, he told the courtroom.

He argued that it is a matter of record that bureaucracy is susceptible to executive interference by the government, lacks functional autonomy as well as institutional security of tenure in terms of postings and transfers and further contended: “The provisions in the Elections Act mandating the appointment of executive officers as DROs and ROs amount to sanctioning executive interference by the government in the electoral process rendering the same to be violative of Article 218 (3) of the Constitution and liable to be stuck down”.

He submitted that Section 50 (1)(b) of the Elections Act by restricting the appointment of executive officers as DROs to a “list of offices provided by the government or a provincial government” is violative of the Constitution.

“This section by restricting the appointment of executive offices as DROs to a list of officers provided by the government or a provincial government not only restricts the pool of selection available to the ECP but also relegates the role of the ECP to a secondary nature in the process of appointment by allowing a more dominate function to the government”, the petitioner’s lawyer maintained.

He remarked that as the list of executive officers for appointment is to be provided by the government essence, the government has a direct and far more important role in the appointment of DROs.

The counsel further stated that this renders the impugned Section 50(1)(b) of Elections Act 2017 to the extent of the expression “list of offices provided by the government or a provincial government” liable to be struck down for violating Article 220 read with Article 218 of the Constitution.

He then requested the court that Sections 50 (1)(b) and 50 (1) of the Elections Act 2017 be declared unconstitutional and alternatively, it was prayed that section 50(1)(b) of the Elections Act 2017 the extent of the expression “list of officers provided by the government or a provincial government” therein may kindly be declared unconstitutional.

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The petition

The petition was filed by Barrister Umair Khan Niazi, PTI’s additional secretary general and focal person on legal affairs to former chairman Imran Khan and the PTI, challenging appointments of DROS, ROs and AROs with the claim that general elections could not be conducted transparently, fairly or freely in the presence of these officers from the branch of the state.

However, the law officer strongly opposed the contentions of the petitioner’s counsel and requested the court to dismiss the petition. ECP’s counsel also requested the court to dismiss this plea as non-maintainable.