It is elementary that our Constitution embodies the doctrine of a trichotomy of powers, with the Judicature being one of the three critical organs of the state – the other two being the Parliament and the Executive. But, then, there is another genre of independent constitutional bodies envisaged under the Constitution. These bodies discharge specified functions or undertake dedicated duties. The Election Commission of Pakistan (ECP) is one such body, that is entrusted the duty to hold free and fair elections within preferred timelines and in manner largely stated in the Constitution itself.
Just as the Chief Justice (CJP) is central to the Supreme Court (article 176), the Chief Election Commissioner (CEC) is to the ECP (article 218). Without either chief, the respective body cannot be conceived of. Being the heads, therefore, it is only fair and reasonable that it is they who have and must exercise exclusive administrative powers in due discharge of their functions and duties, unless of course, the law prescribes otherwise. There is no such law as yet, though the Supreme Court (Practice and Procedure) Act, 2023, awaiting presidential assent, may become one with respect to SCP’s exercise of powers under article 184(3).
Interestingly, there is no provision in the Constitution that specifically states that the jurisdiction of the SCP cannot be curtailed. Under article 175(2), the SCP cannot have jurisdiction except as provided for in the Constitution or any law. It is article 142(a) which deals with the exclusive lawmaking power of the Parliament, read with Entry 55 of the Federal Legislative List in the Fourth Schedule, that fuels the argument that the SCP powers cannot be curtailed.
A plain reading of Entry 55 does not so reveal. In providing that the Parliament may legislate on matters of jurisdiction and powers of all courts, it states ‘except’ the Supreme Court. However, the latter part of Entry 55 clarifies that the Parliament can make laws to enlarge powers of the SCP or grant it supplement powers. Thus, it is argued, and rightly so, the Parliament cannot make laws to curtail or limit the jurisdiction of the SCP - it can only enlarge it.
In contrast, article 222 of the Constitution, which grants the Parliament specific powers to make electoral laws, embodies an express bar: that no electoral law made by the Parliament shall have the effect of taking away or abridging any powers of the CEC or the ECP. So, if the Parliament cannot act to abridge or limit the powers of the CEC or the ECP, the question arises: can the SCP make an order in pending article 184(3) proceedings on elections in Khyber-Pakhtunkhwa and Punjab that has or may have the effect of abridging or taking away powers and jurisdiction of the CEC or ECP? The answer is a simple ‘No’. But it remains to be seen how the cookie crumbles at the SCP.
Both the SC and the ECP are intended to be permanent bodies, but the Constitution employs the word ‘permanent’ with reference to the existence of the ECP only (article 218). Does this give some kind of an edge to the ECP or does it place it at a disadvantage vis-a-vis the SCP? No, it is just to emphasise the significance of the ECP, and in no way make it more eminent or beyond the reach of the SCP’s jurisdictional remit. Conversely, it doesn’t give the SCP cause to dictate to the CEC or ECP to discharge its constitutional duties.
There is no point in pitting two constitutional bodies against each other as, if two machos must first resolve issues between themselves so that the greater good and peace may ensue. A harmonious co-existence to achieve the ultimate objectives assigned to each by the Constitution is all that is required.
It is time for them to rise and shine – according to the Constitution!