The magisterial powers assigned to the officers of armed forces and civil armed forces for dealing with certain election-related offences have been drawing criticism from different political forces. On the day of polling, the presiding officer of a polling station and the designated officers of security forces will be exercising almost identical magisterial powers.

Unlike previous general elections wherein the security forces had only been assigned security functions, this time they have also been assigned certain other powers, including keeping eye on any “irregularity/malpractice” inside or outside a polling station.

The designated officers are empowered to convict a person after summary trial in certain election-related offences and could sentence him up to three years imprisonment or fine of Rs100,000 or both. While some political parties have been criticising the Election Commission of Pakistan (ECP) for assigning magisterial powers to the armed forces officers, they ignored the fact that a provision was incorporated in the Elections Act, 2017, by the Parliament empowering the ECP to assign such powers.

Section 193 of the Act deals with certain offences triable by authorised officers. Under the said section, an officer exercising the powers of a civil or criminal court, or an officer of the Armed Forces, or an officer performing a duty in connection with an election, who is authorised by the Commission in this behalf may: exercise the powers of a Magistrate of the first class under the Code of Criminal Procedure in respect of the offences of personation, or capturing of polling station or polling booth, which are punishable under section 174 of the Elections Act.

Such authorised officers are empowered to take cognizance of the said categories of offences under section 190 of the CrPC and to try the offender summarily. The issue first surfaced when the ECP through a notification on July 6 issued Code of Conduct for security officials for the general elections 2018.

The said Code provides that the security personnel belonging to law-enforcing agencies deputed on election duty shall perform their duties in accordance with law and within the confines of mandate assigned to armed forces to assist ECP in conduct of free, fair and transparent General Elections by deploying inside and outside of all polling stations; secure environment of maintenance of law and order; security of printing presses during printing of ballot papers; security during transportation of ballot papers from printing presses to the officers of the district returning officers; security to the presiding officers during transportation of polling bags from the offices of returning officers to the polling stations; and, security, during transportation of election material, to the presiding officers after completion of polling and counting at the polling stations till receipt of record in the office of the returning officers, then tabulation and announcement of provisional results by the ROs.

The said Code provides that each gazetted officer and junior commissioned officer of the armed forces of Pakistan and other law-enforcement agencies shall exercise powers delegated to them through a notification to be issued by ECP. Subsequently, the ECP issued a notification on July 10 for delegating powers of magistrate of the first class to the designated officers of armed forces. While in the code members of other law enforcing agencies were also mentioned, the ECP considered it appropriate to assign magisterial powers only to designated officers of armed forces/civil armed forces.

Section 2 of the ECP’s notification states that the ECP in terms of Articles 220 and 245 of the Constitution, section 4 and 5 of the ATA, 1997 and section 5 read with section 193 of the Elections Act, 2017, hereby authorizes that each designated officer in-charge of Pakistan Armed Forces/ Civil Armed Forces (gazetted as well as junior commissioned officer) deployed for providing security inside and outside all the polling stations of a constituency shall exercise powers of magistrate first class for entire period of deployment in respect of offences punishable under sections 174 (corrupt practices), 176 (disorderly conduct near polling station), 177 (canvassing near polling station), 183 (illegal practices)and 194 (powers of police officer).

The powers assigned under the July 10 notification were much more than those assigned to presiding officers.

Subsequently, the ECP issued a corrigendum on July 18 reducing the number of offences wherein the officers of armed forces/civil armed forces are empowered to exercise magisterial powers. These offences now include section 169 (personation) and section 171 (capturing a polling station or polling booth). These offences amount to corrupt practices which are punishable under section 174 of the Elections Act.

The ECP issued another notification on July 12, through which the presiding officer of a polling station has also been assigned powers of magistrate of the first class in respect of the same category of offences falling under section 169 and 171 of the Elections Act.

Question now arises if any offence of personation or capturing of a polling station takes place in a polling station, who will be taking action, the presiding officer or the designated officer of armed forces/civil armed forces.

The Code of Conduct provides that the security personnel belonging to LEA shall cooperate with the concerned DRO, RO, presiding officer and polling staff as under section 83 (4) of the Elections Act, which provides that all officials posted at a polling station shall render their fullest cooperation to the presiding officer for maintenance of order and for ensuring uninterrupted voting at the station.

The ECP notification also provides that the armed forces/civil armed forces personnel deployed inside or outside a polling station while performing their security duties are supposed to first report to the presiding officer any irregularity/malpractice, they observe and act according to the instructions issued by him in that regard.

“In case the presiding officer does not act to prevent the commission of any reported irregularity/ malpractice, the security staff will immediately bring the matter to the notice of the designated officer-in-charge of Pakistan Armed Forces/Civil armed Forces who shall immediately take action in the light of powers delegated to him and also inform the Returning Officer concerned.”

Published in Dawn, July 23rd, 2018