ECP says it is fully functional despite lacking two members

ISLAMABAD: The Election Commission of Pakistan has addressed the question of whether it has the jurisdiction to decide any matter in view of vacancy of its two members and said that it is functional for all practical purposes, citing the Constitution and the Elections Act.

The ECP addressed the question in its judgement with reference to the declaration for disqualification of PTI’s 20 MNAs submitted by PTI Chairman Imran Khan on the grounds of defection under Article 63A (1) (a) of the Constitution. During hearing, the question of the ECP jurisdiction was raised by some PTI dissident MNAs' lawyers.

For determination of the subject case, the ECP had formulated four questions and one of them was about its jurisdiction in the instant matter of declaration for disqualification. The ECP says in its judgement, released on May 11 late night, the composition of the commission is defined under Article 218 (2) of the Constitution and the commission comprises a commissioner and four members, one from each province.

Article 218 (3) of the Constitution obliges the commission to organize and conduct the election and to make such arrangements as are necessary to ensure that election is conducted honestly, justly, fairly and in accordance with the law. The judgement says that the Elections Act, 2017 is enacted under Article 222 of the Constitution and Section 3 of the Act provides that in the performance of its functions and duties and exercise of its powers, the commission shall regulate its own procedure.

The commission may exercise its powers and perform its functions even if the office of any member of the commission is vacant or any of the members for any reason is unable to attend the proceedings of the commission and the decision of the majority of the members shall have the effect of the decision of the commission.

Similarly, Section 6 of the Act also empowers the commissioner to constitute benches comprising of two members to hear and decide complaints, applications, petitions or appeals filed before it under the Act. “This provision was added to the act through an amendment on March 10, 2019. Wisdom is derived from the judgement reported in PLD 2018 SC 97 titled ‘Sardar Sher Bahadur Khan and others vs the Election Commission of Pakistan and others, wherein the issue of composition of the commission was challenged before the august Supreme Court of Pakistan,” the judgment says.

The commission says that the august court has held that the decisions of the commission shall not be invalid on the ground of vacancy or absence of any member. In the light of this, it is held that the commission is functional for all practical purposes.