Polls apart

February 26, 2023

Who has what role in setting a date for elections once due?

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aking suo motu notice of the matter, the Supreme Court of Pakistan has decided to hear the case about elections to the provincial assemblies of the Punjab and Khyber Pakhtunkhwa. Chief Justice Umar Atta Bandial has formed a nine-member bench for the purpose.

Earlier, President Arif Alvi had unilaterally announced that the elections will be held on Sunday, April 9. However, there were indications right away that Pakistan Democratic Movement government and the Election Commission of Pakistan believed that the president lacked constitutional authority to do so and would challenge it.

The Punjab Assembly was dissolved on January 14, and the KP Assembly on January 18. The constitution provides that in the event of a dissolution fresh elections must be held within three months. However, the governors of both provinces have shown great reluctance to set the date for the elections. They have cited the law and order situation and the need for consultation with other stakeholders before holding the elections.

More than a month has passed since the dissolution but there is no clear sign or confirmed date for the elections. The Election Commission of Pakistan, which has previously requested the governors for a date, has pointed out that under the constitution the president cannot assume this role.

Last week, President Alvi had shared a letter with the media. In that letter, he had stated that he had sought a meeting with the Election Commission of Pakistan on February 20 to announce the date for elections to the KP and Punjab assemblies. However, the ECP had declined the invitation and replied that they could not participate in a meeting on the subject matter with the office of the president. The president has written, “The governors of the Punjab and the KP are not performing their constitutional duties for appointing a date, not later than ninety days from the date of dissolution of provincial assemblies as per the Constitution of Pakistan.”

The president’s office said the ECP was not fulfilling its constitutional obligation to holding elections for the assemblies of the Punjab and the KP. The president commented, “I have felt it necessary to perform my constitutional and statutory duty to announce the date of elections to avoid the infringement and breach of the Constitution and law i.e holding of elections not later than ninety days.”

However, the Election Commission has a different view. A senior ECP official, who requested not to be named, clearly said that the president’s announcement of the election date was unconstitutional. He said the ECP had refused to participate in a meeting called by President Alvi to discuss the delay in announcing the date for fresh polls.

The government is apparently waiting for the PTI to become unpopular, but the worsening economic and security challenges threaten its own popularity.

The ECP holds that Section 57 of the Elections Act, 1997, which is being referred to as the president’s power, is related to a situation where the National and Provincial Assemblies complete their terms together. This is different from the present situation, where the assemblies were dissolved at different times. “President Alvi has created a constitutional crisis by announcing that he has set a date to hold elections in the Punjab and Khyber Pakhtunkhwa on April 9,” says Pakistan Institute of Legislative Development and Transparency (PILDAT) president Ahmed Bilal Mehboob. He says such action is beyond President Alvi’s jurisdiction, as he could only do so on the advice of the prime minister.

The PTI and some other stakeholders have already filed petitions in the relevant high courts and the Supreme Court of Pakistan urging the courts to direct the ECP to announce a date for fresh elections.

A two-member bench of the Supreme Court recently expressed displeasure over the delay in the announcement of the election date for the Punjab. It urged Chief Justice Umar Ata Bandial to initiate suo motu proceedings. Its order read, “The CJP may consider it appropriate after invoking jurisdiction under Article 184(3) to constitute a bench for taking up the matter.”

There is general agreement that the constitution calls for fresh elections for the dissolved houses within a period of 90 days. However, there is an impression that the ruling alliance wants the National Assembly and provincial assemblies elections to be held at the same time. It has been suggested that the PDM and some other quarters are afraid of the current popularity of former prime minister Imran Khan and want to wait until his popularity wanes. This could allow them to win the next elections. “Now, the Supreme Court will make a ruling on this issue,” Mehboob says, adding, “However, the ECP under the election law can delay the elections under various circumstances.” He says the government’s goal apparently is to wait until the PTI grows unpopular, but the state of the economy and the security challenges are threats to their own popularity.

Section 58 of the Election Act 2017, which deals with “alteration in election programme,” states that “Notwithstanding anything contained in Section 57, the Commission may, at any time after the issue of the notification under sub-section (1) of that section, make such alterations in the Election Programme announced in that notification 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 for the purposes of this Act: Provided that the Commission shall inform the President about any alteration in the Election Programme made under this subsection.” According to Mehboob, there is no need for an amendment to the constitution or any law to postpone the polls for a specific period of time. He says that the chief election commissioner might not want to delay the polls without some solid reasons.

The writer is a member of staff. He can be reached at vaqargillanigmail.com

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