Can ECP take cognizance for disqualification | By Hafiz Ahsaan Ahmad

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Can ECP take cognizance for disqualification

ELECTION Commission is an important institution established under the Constitution of Pakistan.

Article 218 (3) of the Constitution states that it shall be the duty of Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

The Constitution under Article 219 has also prescribed the functions that Election Commission shall be charged with the duty of preparing electoral rolls for election to the National Assembly, Provincial Assemblies and local governments, and revising such rolls periodically to keep them up-to-date, organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly, appointing Election Tribunals and the holding of general elections to the National Assembly, Provincial Assemblies and the local governments.

As per Article 220 of the Constitution, it shall be the duty of all executive authorities in Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.

Simultaneously, Parliament has not specifically given any legal power to Election Commission under Article 218(3) of the Constitution or the Election Act 2017 to determine to inquire into and decide upon the matter of pre-election qualification or disqualification of a returned candidate, and where there is no such legal power clearly available or given or prescribed in law, and if any such order is passed by the Commission relating to the determination of qualification or disqualification with reference to Articles 62 and 63, that would not be an order being competently passed under the Constitution or law and would not be legally maintainable.

Parliament on the other side has the legislative competence to confer such jurisdiction on the Election Commission in terms of a law made under Article 222 of the Constitution, then this legal power must be done explicitly, through express conferment and by using clear language in Constitution and law.

In other words, the jurisdiction relating to the question of qualification or disqualification could only be determined thorough a clear and dedicated written procedure prescribed in Constitution and law but not impliedly.

It is also important that as the question of qualification or disqualification is arising as part of an election dispute and if thus being considered by the Commission directly in terms of Article 218(3), the provisions of Article 225 need to be kept in mind, and that no one can be declared dishonest without examining or appreciation of proper evidence against him by a court of law.

Thus there is no legal ambiguity that declaration under Article 62(1) (f) of Constitution could only be given by a Court of law and not by Election Commission.

The two recent judgments of the Supreme Court of Pakistan against the decisions of Election Commission of Pakistan relating to determine and inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate would have long-lasting effect on the constitutional and political spectrum of Pakistan in future.

The Supreme Court has applied correct legal interpretation of the Constitution and law that ECP has no jurisdiction under Article 218(3) of the Constitution to inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate by declaring that there is no power or jurisdiction inherent in the Commission itself in terms of Article 218(3) to consider the qualification or disqualification of a candidate or member of Parliament or Assembly.

As per constitutional provisions and law, ECP lacks jurisdiction to determine the eligibility or disqualification of a member of Parliament or Assembly for inquiring into and decide upon the matter of pre-election qualification of a contesting candidate or disqualification of a returned candidate then that order would be very difficult to legally sustain before the superior courts as ECP being an administrative forum to conduct the election honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against and cannot hold and determine the eligibility or disqualification of a contesting candidate or returned candidate under Articles 62 or 63 of the Constitution or under the election laws.

The real and important mandate given by the legislatures to Election Commission is to make such impartial electoral framework and credible electoral administration and process for free, fair, credible and transparent elections in Pakistan.

It is as well constitutional and legal requirements that the elections in the country should be held, organized and conducted honestly, justly, fairly and in accordance with the constitutional provisions, and that every participant of election process should provide equal level playing ground during the whole election process.

It is thus very important that the Election Commission should take all measures for implementation of election laws and rules before or during or after the election and to make sure that the whole election process would have the foundation of trust, credibility and fairness which is vital and important for the continuity and good democracy in Pakistan.

—The writer has served on many important quasi judicial positions including Chairman, Customs, Excise & Sales Tax Appellate Tribunal.