Election Commission

Election Commission has no power to conclusively determine jurisdictional facts but only has power to objectively ascertain existence of jurisdictional facts before exercising jurisdiction conferred upon it under Articles 63A(3) and (4) of the Constitution, for the purpose of determining alleged defection of a member from his political party

Findings of Election Commission on a jurisdictional fact, such as whether member concerned belongs to parliamentary partly of a political party, is not conclusive

Rather, it is subject to correction by Supreme Court as its appellate forum, and ultimately to final determination by a Civil Court of plenary jurisdiction.

Petitioner was appointed as Ombudsperson for four years but she was removed from service by Election Commission, before completion of her tenure

Validity

In absence of statutorily prescribed procedure for removal of Ombudsperson, particularly when the appointment was for a fixed term, the incumbent could not be removed from office prior to the expiration of that term, save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within Protection against Harassment of Women at the Workplace Act, 2010

Removal of Ombudsperson was not provided under Protection against Harassment of Women at the Workplace Act, 2010, except in the case of resignation

Even if removal became necessary on grounds of proven misconduct or incapacitation, the power to take such action was logically lie with the appointing authority, i.e., the Government, following due process

Election Commission was nowhere authorized in such regard under the Protection against Harassment of Women at the Workplace Act, 2010

Primary purposes of Election Commission, as delineated in the Constitution and the Elections Act, 2017, revolves around the conduct of free and fair elections

Achieving such purposes inherently, Election Commission was not empowered to direct permanent removal of any office bearer

Nature of removal contemplated in the notification of Election Commission, the "immediate termination of services" - implied a permanent cessation of employment, which did not directly relate to the Election Commission's core function of ensuring fair elections

At the most, Election Commission's powers in relation to public officials during election period, as indicated by R. 170(1) of Election Rules, 2017, and S. 230(2)(f) of Elections Act, 2017, (regarding the Caretaker Government's limitations), extended to transfer or shuffling of public officials with the Commission's approval

Such had suggested a focus on preventing misuse of official positions to influence elections, rather than permanent removal of appointees, particularly those with a statutorily defined tenure

De-notification of petitioner by Caretaker Government of Punjab by way of notification in question was not within its lawful authority

High Court set aside notification in question issued by Government of the Punjab de-notifying services of petitioner as Ombudsperson Protection against Harassment of Women at Workplace

High Court declared notification in question to be null and void and petitioner was deemed to be in office as if the notification had not been issued

High Court directed that to ensure that future appointments to the position of Ombudsperson were beyond reproach, it would be apt to direct that the relevant authorities should, with due expediency, formulate and implement a comprehensive, transparent and merit-based appointment procedure

Constitutional petition was allowed, in circumstances.

Petitioner was appointed as Ombudsperson for four years but she was removed from service by Election Commission, before completion of her tenure

Validity

In absence of statutorily prescribed procedure for removal of Ombudsperson, particularly when the appointment was for a fixed term, the incumbent could not be removed from office prior to the expiration of that term, save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within Protection against Harassment of Women at the Workplace Act, 2010

Removal of Ombudsperson was not provided under Protection against Harassment of Women at the Workplace Act, 2010, except in the case of resignation

Even if removal became necessary on grounds of proven misconduct or incapacitation, the power to take such action was logically lie with the appointing authority, i.e., the Government, following due process

Election Commission was nowhere authorized in such regard under the Protection against Harassment of Women at the Workplace Act, 2010

Primary purposes of Election Commission, as delineated in the Constitution and the Elections Act, 2017, revolves around the conduct of free and fair elections

Achieving such purposes inherently, Election Commission was not empowered to direct permanent removal of any office bearer

Nature of removal contemplated in the notification of Election Commission, the "immediate termination of services" - implied a permanent cessation of employment, which did not directly relate to the Election Commission's core function of ensuring fair elections

At the most, Election Commission's powers in relation to public officials during election period, as indicated by R. 170(1) of Election Rules, 2017, and S. 230(2)(f) of Elections Act, 2017, (regarding the Caretaker Government's limitations), extended to transfer or shuffling of public officials with the Commission's approval

Such had suggested a focus on preventing misuse of official positions to influence elections, rather than permanent removal of appointees, particularly those with a statutorily defined tenure

De-notification of petitioner by Caretaker Government of Punjab by way of notification in question was not within its lawful authority

High Court set aside notification in question issued by Government of the Punjab de-notifying services of petitioner as Ombudsperson Protection against Harassment of Women at Workplace

High Court declared notification in question to be null and void and petitioner was deemed to be in office as if the notification had not been issued

High Court directed that to ensure that future appointments to the position of Ombudsperson were beyond reproach, it would be apt to direct that the relevant authorities should, with due expediency, formulate and implement a comprehensive, transparent and merit-based appointment procedure

Constitutional petition was allowed, in circumstances.

Under Article 218(3) of the Constitution the Election Commission does not have such general and inherent power which is absolute or superior to the law enacted by the Parliament

General power under Article 218(3) of the Constitution and section 8(c) of the Elections Act, 2017 can be exercised by the Election Commission within two parameters: (i) during the election process, which starts with the issuance of the election programme and culminates with the publication of the name of thereturned candidates in the official gazette, and (ii) when there is no express provision in the law enacted by the Parliament to deal with the matter or issue that arises during the performance of constitutional duty of conducting the elections honestly, justly, fairly and in accordance with law

Scope of the general powers of the Election Commission under Article 218(3) of the Constitution and section 8(c) of the Elections Act, 2017 stated.

Election Commission of Azad Jammu and Kashmir is empowered under Art. 50 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to conduct elections of the Legislative Assembly of Azad Jammu and Kashmir

Election Commission is a constitutional body which performs its functions independently, freely, fairly and transparently

Acts done by Election Commission should not be interfered in an ordinary manner

Powers vested to the Election Commission are trust and can be expected to be performed objectively, reasonably, independently and in accordance with law

However, the possibility of breach of law, arbitrariness and mala fide cannot be overruled

In any constitutional petition, it is necessary for the petitioner to prove that the impugned act of the Commission is against the law, arbitrary or with mala fide, otherwise, the writ petition is not maintainable for academic discussions and it will amount to interference in the election process which is not warranted by law.

Election Commission prepares electoral roles under Art. 219(a) of the Constitution which includes electoral roles of Local Government to hold general elections

In order to hold general elections and to prepare electoral roles, onus is on the Commission to provide an opportunity to deal with objections raised therein

Duty upon Election Commission is caste under Art. 218 of the Constitution to ensure and conduct elections, justly, fairly and in accordance with law

Election Commission is responsible not only for conducting election itself, but also for making all necessary arrangements for such purpose, prior to Election Day

By conferring such responsibility on Election Commission, the Constitution ensures that all activities both prior, and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness, fairness and in accordance with law.

Election Commission was under direct obligation to exercise all powers vested in it in a bona fide manner, meeting the highest standards/norms

All discretionary powers were also to be exercised/tested against such standards

Election Commission was a cornerstone of the parliamentary system of governance and the democratic set up

Unless shown that the jurisdiction/discretion exercised by the Commission was illegal/mala fide/unjustified / manifestly arbitrary, its working /decisions should not be interfered with

Service of the officers/officials of the Commission had to be fully protected so that they would not succumb to administrative/political pressure

Election Commission had jurisdiction to initiate proceedings against a political party which appeared to be complacent in attempt to influence and manipulate the election process through grave acts of corrupt practices

Commission had to ensure that the diligently dutiful officials who had made statements during the summary proceedings were protected from reprisals.

Election Commission was required to form an opinion on the touchstone of the test of balance of probabilities, rather than meeting the standards set out for proving guilt in criminal proceedings.

Petitioner assailed appointments of four provincial members to Election Commission of Pakistan out of them three were retired judges of respective High Courts and one was a retired bureaucrat

Plea raised by petitioner was that three members had been appointed before expiry of two years from their retirement and the bureaucrat was an accused under National Accountability Ordinance, 1999

Validity

Office of Election Commission of Pakistan was a 'quasi-judicial office' therefore, bar of expiration of two years in terms of Art. 207(2) of the Constitution did not attract in appointment of retried judges of Supreme Court and High Court

Writ of quo-warranto could not be issued against three members who retired as judges of different High Courts on the ground of their appointment made before expiration of two years from the date when they ceased to hold office as Judges of High Courts

High Court declined to issue writ of quo-warranto against fourth member who was retired bureaucrat as no substantial Constitutional or legal ground was agitated nor any sufficient material or evidence was produced in support of allegations of corruption

High Court declined to conduct any inquiry or to make any probe into the allegations leveled against the retired bureaucrat while exercising jurisdiction under Art. 199(1)(b)(ii)of the Constitution

Constitutional petition was dismissed in circumstances.

Imperative for Election Commission, as per its mandate under the Constitution, to devise and supervise every step till elections are finally held

In given context role of Election Commission as a neutral empire assumes importance that has to be discharged by it independently

Any sitting government contesting elections is always to be treated as party at par with other contesting candidates

To conduct elections with honesty, justness and fairness, it becomes incumbent upon Election Commission to also decide elections related issues occurring either before or after elections in transparent manner and in accordance with law

When Election Commission is tasked to guard against corrupt practices, it entailed that not only it shall take over charge of all affairs relating to election but it has to watch over any manoeuvering, in whatsoever shape and nature, in delimitation process

Under law, Election Commission can take note of and undo any notification by Government notifying certain areas, which are urban, as rural or vice versa, if it is done to gain some advantage in elections

Commission can certainly make necessary amendments in constituencies as provided under Delimitation of Constituencies Act, 1974 to avoid any imbalance in population ratio and reverse new changes made by Government to gain edge over opponents in election.

Article 219(d) of Constitution spoke of duties of Election Commission that it shall be charged with the holding of general elections to the National Assembly, Provincial Assemblies and the Local Governments

Expression "to ensure that election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" in Art. 218(3) of the Constitution denotes the importance that Legislature attaches to transparency and fairness of election

Reason behind said provision is to enhance public confidence in whole process and to make same more permeating, so that wide range of people shall involve themselves in decision making process concerning their lives and get maximum benefit out of it

Corrupt practices, which can wreak havoc regarding results of elections and have far-reaching adversarial effects on very process of election, are bound to raise questions over eligibility of returned candidates.

Respondent assailed election result and on his application, election petition was transferred to Election Tribunal at place "S" for adjudication

Plea raised by petitioner was that election petition could be transferred by Election Commission and not by Chief Election Commissioner alone

Validity

Election Commission was charged under Art.219 of the Constitution, with duty to appoint Election Tribunals, so transfer application should have been placed before the Commission, as it was done at the time of passing of interim order by the Commission

In absence of other members of Election Commission, Chief Election Commissioner could not decide transfer application single handedly

Powers to transfer proceedings from one forum to another were somewhat administrative and supervisory in nature

Appointing authority of Election Tribunal was Election Commission and not the Commissioner alone, therefore, powers of transfer also vested in Election Commission which were akin and or ancillary and incidental to its main powers of appointing Election Tribunal bearing in mind Art.219 of the Constitution

Determination of jurisdiction was one of the important elements, if justice was based on coram non judice orders, it would have no legal sanction behind it

High Court set aside the order passed by Chief Election Commissioner and remanded the matter to Election Commission to decide transfer application afresh

Petition was allowed in circumstances.

In exercise of its powers and authority, the Election Commission possessed autonomy in decision making and independence in the formation of its judgment about suitable redress, solutions and remedies.

Courts were there to enforce the constitutional safeguards and preserve and protect the institutional imperatives of the Election Commission unless there was a case involving illegality or injury to public interest.

For the discharge of its duties, the Election Commission must possess autonomy, authority, independence and sanctity to ensure that the election process conducted by the Election Commission enjoyed respect and credibility.

Primary obligation of Election Commission of Pakistan to ensure organization and conduct of election and make such arrangements as are necessary to ensure that elections are conducted honestly, justly and fairly and in accordance with law and Constitution

Till such time that results have been notified, Election Commission of Pakistan continues to be supervisor of the process and can in appropriate cases interfere in the matter in order to fulfil its constitutional obligations.

In the parliamentary system of government a constitutionally independent and empowered Election Commission rested as one of the foundational stones of a democratic setup.

By virtue of S.107 of the Representation of the People Act, 1976, the Commission could, with the approval of the President, make rules for carrying out the purposes of the said Act, which further reinforced the independence with which the Commission was to exercise its powers

No restriction existed on the Commission to frame rules with the approval of the President, to ensure that the elections were conducted fairly, honestly, justly and in accordance with law and that corrupt practices were guarded against.

Election Commission may also exercise its powers in anticipation of an ill that might have the effect of rendering the election unfair

Where a violation of the standards mentioned in Art.218(3) of the Constitution had not as yet taken place, the Election Commission was legally empowered under Art.218(3) to exercise its powers pre-emptively in order to avoid a violation of these standards

Election Commission was fully empowered by Art.218(3) of the Constitution to make such orders as in its opinion were necessary for ensuring that the election was fair, honest etc.

Election Commission enjoyed broad powers not only to take pre-emptive action but also to pass any and all orders necessary to ensure that the standards of 'honesty, justness and fairness' mentioned in Art.218(3) were met.

Section 103(a) of the Representation of the People Act, 1976, instructed the Election Commission to ensure a "fair election", which implied that large scale malpractices including coercion, intimidation and pressures, prevailing at the election would negate the 'fairness' elections were to embody

Sections 78, 79, 80, 80-A, 81 and 83 of the Representation of the People Act, 1976, specified activities that the Election Commission could regulate and check under Art.218(3), but section 103(a) of the Representation of the People Act, 1976 substantially enhanced said defined spectrum of cognizable activities and reinforced the obligation to check them

Section 103(c) of the Act, empowered the Election Commission to issue instructions, exercise its powers and make orders to effectuate the said standard.

Article 218 of the Constitution, constituted the Election Commission and empowered it to organize and oversee the election process and to ensure, inter alia, that it was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against.

Representation of the People Act, 1976, vested the Election Commission with the responsibilities and powers to regulate and check intra-party affairs and actions taken by candidates and parties in anticipation of and on Election Day; to resolve all election disputes; to declare the election void, and to award punishments for violating relevant election laws

Article 220 of the Constitution also directed the Federal and Provincial machinery to assist the Election Commission in fulfilling its constitutional responsibilities

Election Commission was entrusted with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process.

Said words implied that the Election Commission was under a direct constitutional obligation to exercise all powers vested in it in a bona fide manner, meeting the highest of standards and norms, therefore, as a natural corollary all discretionary powers were also to be exercised and tested against such standards.

Was of utmost importance that the Election Commission executed its functions and discharged its responsibilities effectively, efficiently and in letter and spirit

By fulfilling its mandated duties and responsibilities, the Election Commission essentially gave birth to a body/institution of the nation, called the Parliament

Effective fulfillment and honest discharge by the Commission of its responsibilities would lend greater legitimacy to an elected democratic government and give effect to its constitutional mandate, therefore, it was imperative that the Election Commission employed its extensive powers to regulate the election process

Any shortfall in the discharge of its responsibilities would violate express dictates of the Constitution, devastate the efficacy of the Constitutional Order and the envisioned operation of the State.

Article 218(3) implied that the Election Commission was responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day

Constitution conferred such responsibility on the Election Commission and ensured that all activities both prior, on and subsequent to Election Day, that were carried out in anticipation thereof, adhered to standards of justness and fairness, were honest, in accordance with law and were free from corrupt and/or illegal practices.