Overreach: Is ECP overstepping its legal jurisdiction?

"The ECP may propose transfers of officials but it cannot propose replacements,” says Justice (Retd) Tariq Mehmood.

ISLAMABAD:

In a move that could raise serious questions about the legal jurisdiction of the Election Commission of Pakistan (ECP), the election authorities have ordered the replacement of the Inspector General of Khyber Pakhtunkhwa (K-P) police with a person of their own choice.

A day after the ECP issued orders to reshuffle over 30 top bureaucrats in Sindh, director elections ECP on Friday sent a letter to the secretary establishment division directing him to remove Akbar Khan Hoti, the IG police K-P, and called for the incumbent additional IG, Khalid Masood, to be appointed as the new provincial police chief.

The ECP ordered the removal of Hoti- who belongs to an influential political family of Mardan - on the grounds that six of his cousins were contesting national and provincial assembly seats in the May 11 general elections.

However, the commission has also given the name of his replacement, raising questions as to whether the ECP is authorised to issue such direct orders.

The letter signed by Syed Sher Afgan, director general (elections), did not mention any legal provision under which the commission can propose the replacement.

Justice (Retd) Tariq Mehmood, who also served as a member of the ECP, believes it has overstepped its mandate.“It was not appropriate for ECP to issue such directives on its own. The ECP may propose transfers of officials but it cannot propose replacements,” he said, adding that it was the responsibility of the interim government to make such replacements.

The ECP draws its powers from article 218 of the constitution. Under this constitutional provision, legal experts believe the ECP can take steps like the removal of those officials whom they consider to be biased, so that they cannot influence election results. However, they said it was open to question whether the ECP was empowered to issue directives to appoint specific persons.

“How does this contribute to the holding of fair polls? How can they give names? It is beyond the ECP’s jurisdiction,” said former law minister Dr. Khalid Ranjha.

The ECP had sought unbridled powers to make transfers and postings as part of a reforms package, but a parliamentary committee comprising members of the Senate and the last national assembly rejected this proposal.

On April 2nd, the ECP issued a general directive to the Federal and Provincial Caretaker governments to shuffle or transfer all Federal and Provincial Secretaries.

ECP officials also say that if the commission receives complaints against any official of being partisan in favour of any candidate or a political party, it can ask for the transfer of that official.

However, if the caretaker government considers that a Federal or Provincial Secretary is independent and need not be transferred, it may refrain from doing so and intimate the same to the Election Commission.

At the time of the filing of this report, the commission officials could not quote any law backing the order in which it proposed the replacement of IGP Akbar Khan Hoti.

Published in The Express Tribune, April 13^th, 2013.