The controversial decision of the Election Commission of Pakistan (ECP) to put off general polls to the Punjab Assembly appears to have opened a can of worms, with a top commission official justifying it for “reasons beyond their control”, and some others within the ECP conceding that the move was beyond ECP’s constitutional mandate.

A senior ECP official, when contacted, said the commission’s “hands were tied” and it was left with no other option but to postpone the polls.

He said it was not possible to hold free and fair elections without the availability of funds and security personnel. In his opinion, the decision has been taken in accordance with law.

But other ECP officials, in background conversations with Dawn, candidly admitted that the ECP had overstepped its authority by unilaterally setting a date for general elections and giving an undeclared extension to the caretaker set-ups in Punjab and Khyber Pakhtunkhwa (KP).

Opinion seems divided within ECP; some believe commission’s ‘hands were tied’, others say it overstepped its authority

One of them said Section 8(c) cited by the ECP in its order had no relevance at this stage. The section that deals with the powers of the commission to ensure fair elections reads that the commission may —

(a) stop the polls at one or more polling stations at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election;

(b) review an order passed by an officer under this act or the rules, including rejection of a ballot paper; and (c) issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this act and the rules.

He said under Section 58 of the Elections Act, the commission may, at any time after the issuance of the notification, make such alterations in the election programme for the different stages of the election or may issue a fresh election programme as may, in its opinion to be recorded in writing, be necessary, but said it does not give it power to delay the elections beyond a reasonable limit.

He also agreed that no act of the parliament could override the Constitution, which required general polls to a provincial assembly within 90 days after its dissolution.

Article 218(3) of the constitution and the Supreme Court’s judgement in Workers Party case gave ECP the powers to hold free, fair and transparent elections and to guard against corrupt practices, “but not to delay the polls for months”, he argued.

Another ECP official was of the opinion that the ECP instead of making the briefings by ministries of finance and defence and other government functionaries basis for an undeclared decision of holding general polls to the national and provincial assemblies on a single day, should have asserted itself to get the hurdles in the way of timely elections removed.

He said the commission could have invoked Article 220 of the constitution under which all executive authorities were bound to assist it in discharge of its functions. The commission under Section 10 of the Act had the powers to try those failing to implement its directions under Article 220 of the constitution, he added.

He said the ECP could also have approached the Supreme Court, which had already ruled elections to the Punjab and KP assemblies should be held within 90 days, allowing ‘bare minimum delay’ in case of practical difficulties.

Another official of the commission believed polls could have been held in multiple phases to deal with the problem of shortage of security personnel. He recalled that the law and order situation was more critical in 2013, yet the elections had taken place.

A former attorney general, when contacted, said even if there were genuine concerns, the best course for the ECP could have been to reach the Supreme Court and ask how to go about it. Once the apex court had passed an order that had not been challenged, there was no other option but to implement it, he asserted.

If the reasons of fiscal deficit and security threats were accepted, what was the guarantee that everything would be alright by October 8, he added.

The former law officer also recalled that the ECP until recently had been taking the position that it cannot set poll date at its own, but said going against its stated position, the commission has unilaterally announced date for general polls. The ECP’s decision also made people wonder as to how unelected caretakers could be allowed to continue holding office for more than three months.

Published in Dawn, March 26th, 2023