KARACHI: Between the matter of elections being conducted in 90 days (post-dissolution) and the ECP performing the delimitation exercise for constituencies, the trump card is the constitution, say constitutional and legal experts. However, there is also a fear that this could end up being a never-ending wrangle, and perhaps the best way to resolve it would be to conduct the delimitation and then hold the election.
PILDAT President Ahmed Bilal Mehboob says that “A law cannot overrule the constitution”. He explains: “The constitution clearly says that elections are to be held within 90 days (of dissolution of the National Assembly) but it is nowhere written clearly that if the census happens you need to conduct delimitations. What the constitution does say under Article 51(5) is that you will allocate provincial seats in the National Assembly according to the new census. People infer something from this but — in a rare coincidence — in this census the provincial allocation does not change, and by chance it stays the same.”
Mehboob is cognizant of the ECP’s legal compulsions to conduct a delimation exercise. But he says that [the Election Act 2017 under which the ECP is tasked with conducting delimitation after every new census] “is the law and not the constitution. Which is why the constitution will have superiority. Delimitation is not a constitutional requirement.”
So what happens now? According to Mehboob, “now since the ECP has announced the election schedule, after the CEC met with the CJP, I don’t know what to make of it. In my opinion, this [meeting] should not have happened.” He feels ultimately “the decision will come through the SC — whether Article 224 will prevail or delimitation prevails.”
This sort of “never-ending wrangling” is what Director Programs at the Free and Fair Election Network (FAFEN) Muddassir Rizvi cautions against. Rizvi says that this is a “situation where the ECP has to deal with two prerequisites: a constitutional one and a legal one. The constitution says in Article 222 that “parliament may by law... provide for the delimitation of constituencies by the Election Commission including delimitation of constituencies of local governments”. On the other hand, the Election Act 2017 says the ECP shall conduct the delimitation exercise after every census.
Making a case for delimitation, Rizvi says: “while the constitutional proportion of provincial allocation in the National Assembly has not changed after the new census, there are still changes within the provinces. So if one district is getting more seats per its population changes they can easily go to court and ask why they’re not getting those extra seats within the province.”
Per Rizvi, this also leads to more complications. For example, says he, “if the ECP or the president decide that elections will take place on XYZ date without the delimitation being done, and a petitioner goes to court demanding delimitation what happens then? This is never-ending constitutional wrangling. The buck has to stop somewhere.”
For Rizvi, “a good way out is that we have elections in February instead of November.” This would also take care of another glitch in the system, he says: “One of the upsides to this can be that one of the biggest aberrations in our constituencies — unequal constituency strengths — can also be fixed. The newly amended election law makes it easier to allow for equal constituencies. These issues need to be resolved. There hasn’t been an opportunity for the ECP to ensure this previously but now the amendment in the law made by parliament allows the ECP to fix this stuff.”
Reacting to Barrister Ali Zafar’s assertion that the real authority to decide the date of elections lies with the president, and not the ECP, Mehboob says that “all this is subject to interpretation. Article 48 of the constitution says when the president dissolves the National Assembly then s/he is the one who gives the date of the elections that are to be held within 90 days. The next clause deals with the appointment of the caretaker government. That also says the president will appoint the caretaker government. We have already seen how that happens; the president essentially executes a function but actually that caretaker government is advised through a process involving the PM and leader of the opposition, or a parliamentary committee, or the ECP. Using the same analogy, I feel that even the date of the election is actually not given by the president but is advised by the PM (in this case the caretaker PM) who is guided by the ECP — which is the normal procedure.”
According to Rizvi, while the president has the power to fix the election date, the ECP still has the right to change the election date. He says this is a power the ECP always had. But he does warn that “after the delimitation is done, the election has to take place. There is no excuse then.”
For a more purely legal perspective, lawyer Abdul Moiz Jaferii tells The News that the question of how the ECP reconciles the 90-day constitutional requirement with the law that says it has to conduct delimitations per the new census has been answered rather well by Justice Munib in the detailed reasoning recently released by the Supreme Court in the relevant case related to elections “where the court directs elections to take place according to a schedule which everyone ended up ignoring”.
Jaferii reasons that the “ECP has certain duties and certain powers delineated in the constitution, the primary duty being to hold free and fair elections within 90 days. The powers of the ECP in the constitution detail its ability to command the executive during electoral cycles.”
Jaferii says that the problem arises “when the ECP begins to confuse its duties with its powers and vice versa. So the ECP here is assuming its duty to the people of timely delimitation and fair and free elections as some form of authority which allows it to shirk its principal duty of holding elections within 90 days.”
The constitution is supreme here to the extent that, “even if the relevant stages of delimitation cannot be completed within 90 days, this cannot be considered a duty which trumps the constitutional obligation of elections within that time”, adds Jaferii.
In fact, per Jaferii, the ECP doesn’t even have to have this internal tussle. He says that “this idea that delimitation takes time is drawn from the current limitations in capacity of the ECP. But the constitution allows the ECP adequate powers for it to demand the manpower required from the executive to fast-track delimitation and conduct the process within the primary duty timeline.”
The solution could be quite simple in that sense then. Jaferii says that “the ECP could second a hundred thousand experts from whichever government department it needs them from to ensure that the people were not deprived of representation.”
