Analysis: ECP’s current incarnation enjoys powers like never before

Emboldened commission draws strength from certain SC verdicts.

ISLAMABAD:

Despite objections from some smaller parties over its performance and credibility, the Election Commission of Pakistan (ECP) is enjoying powers unprecedented in its history, thanks to a few judgments passed by the Supreme Court (SC).

Last month, the government tried to contest ECP’s notification banning all new recruitments in public sector organisations and barring federal and provincial executives from diverting funds from projects of national importance to the constituencies.

The ministry of law and justice, in its letter dated January 29, argued that the commission had no legal authority to enact such restrictions before the announcement of the election schedule.

On Wednesday, however, ECP rejected the government’s plea to reconsider the bans while explaining the spirit of its January 21 notification. While the commission announced certain exemptions, it largely stood firm on its earlier decision.

According to sources in the ECP, while the commission did not mention it in its recently released order, its members – themselves former judges of the superior courts – drew their stance from the SC’s June 8, 2012 judgment in the ‘Workers Party of Pakistan vs ECP’ case. Among its various directives, the verdict provided several discretionary powers to the ECP, empowering it to take pre-emptive steps to prevent poll rigging and ensure the fairness of the upcoming elections. Such power, in instances it were available, has never before been exercised by the country’s election authorities.

A paragraph of the SC judgment read: “The ECP is empowered to check not only illegal actions relating to the election (violating the limits set for campaign finance, etc) or corrupt practices (bribery, etc), but  also review all election activities, including party gatherings, rallies, the use of loudspeakers, etc, for their effect on the standards of ‘fairness, justness and honesty’ that elections are expected to meet. The commission is also empowered to take pre-emptive measures to ensure that the spirit of democracy, fairness, justness and honesty in the elections is fully observed.”

Certain other recently passed superior court verdicts regarding election matters have also strengthened the ECP’s hand. It is uncertain whether the commission could have stood its ground had it not been backed by such court judgments.

The ECP also draws its powers from article 218(3) of the Constitution. The provision empowers the commission to conduct elections in a ‘free and fair’ manner. Another provision in article 220 binds all state institutions to cooperate with the commission .

Subsequent laws, however, try to limit ECP’s powers, stating that it can exercise its authority only after the election schedule is announced.

Sitting governments in Pakistan have often been criticised for misusing their power to lure voters whenever elections are around the corner. Opposition parties have objected to the practice of doling out jobs in bulk and using discretionary funds in selective constituencies ahead of polls, terming it as pre-poll rigging. However, there were hardly any examples in the country’s electoral history where election authorities have taken any substantives steps to clamp down on such practices. Till now.

Similarly, ruling parties, both in the centre and provinces, have often funded political campaigns using the public exchequer. The ECP this time around has imposed a ban on all such advertisements.

Published in The Express Tribune, February 16^th, 2013.