The country has plunged deeper into a constitutional-cum-political crisis after President Arif Alvi unilaterally announced the date for the election of the two provincial assemblies in Punjab and Khyber Pakhtunkhwa.
Pakistan is facing an unprecedented election scenario where for the first time in its electoral history since 1970, election to the national and four provincial assemblies may not take place around the same date. In the past when elections to all five assemblies took place simultaneously, the president announced the poll date after which the ECP gave the detailed programme of the election. At present, we face the prospect of holding elections to two provincial assemblies only for which the constitution does not clearly provide an answer to the question of who would give the poll date.
The governor of Punjab has taken the position that since he has not dissolved the assembly and Article 105(3) empowers the governor to appoint a date for the poll only when the governor dissolves the assembly, therefore he would not be able to give the date of the election. The constitutional scheme of things requires that the poll date in a general election should be fixed by the executive through either the governors or the president.
The ECP can announce a detailed schedule of general elections only after the poll date is fixed by the federal or provincial constitutional heads. The ECP does not have the legal authority to fix the poll date on its own. This is the reason ECP has filed an appeal against the judgment of the Lahore High Court in which it asked the ECP to fix the poll date in consultation with the governor.
Since the governors had declined to appoint the date of the poll and the ECP had no legal authority to fix the date, the Elections Act, 2017 provided a way out through its Section 57(1) for the president to “announce the dates of the general elections”. This authority to announce the poll date by the president of Pakistan is, however, contingent upon two conditions.
The first condition is stated in the same section 57(1) that the president shall announce the dates of the general elections “after consultation with the Commission”. The second condition is covered in Section 48(1) which states that “In the exercise of his functions, the president shall act on and in accordance with the advice of the cabinet or the prime minister.”
Sadly, the president of Pakistan’s decision of February 20 to unilaterally announce April 9 as the polling date for the two provincial assembly elections does not fulfil these two conditions. Although the president invited the ECP to attend a meeting with him for the consultation for the date of the election on February 20, the consultation could not happen because the ECP regretted from attending the consultative meeting because the case, according to ECP, was sub-judice.
The president may have waited for a decision of the Lahore High Court on the Intra-Court Appeal filed by the ECP and the governor so that the ECP could join the consultative meeting with the president to fix the date of the election.
The president’s decision to appoint April 9 as the poll date has also been taken without any advice from the prime minister. Neither did the prime minister give any such advice nor did the president seek such advice from the prime minister. Article 48(2) provides the president the powers to act on his own where the constitution expressly states that the president has the discretionary power like, for example, in the case of Article 58(2) when the president is empowered to dissolve the National Assembly ‘in his discretion’ in case none of the candidates for prime minister is able to win a majority.
In this deepening constitutional mess, the Supreme Court seems to be the only forum where the constitutional and legal provisions can be interpreted and a conclusive ruling given to resolve the crisis.
The writer is President of PILDAT
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