Dysfunctional power tussle

In Pakistan, there is never any shortage of crises given our dysfunctional and unconstitutional institutional arrangements. We are very adept at creating another before an existing crisis is resolved.

The country had barely begun reeling from the uncertainty on the timing of next general election after the ECP decision and a rather liberal schedule of delimitation of constituencies afresh in accordance with official results of the Digital Census 2023. Then entered the president with an open letter to the chief election commissioner (CEC) jockeying for constitutional relevance on setting the date for the general election, even though he has barely recovered from what he himself termed as a management faux pas at the Presidency over his assent or lack of it to the Official Secrets (Amendment) Act, 2023 and the Pakistan Army (Amendment) Act, 2023.

His invitation for consultation has been as publicly rebuffed by the CEC taking the position that after the passage of the Election (Amendment) Act, 2023, to which the president had himself assented on June 26, 2023, it is now the duty of the ECP to notify a date for the election. Earlier, Section 57 of The Elections Act, 2017, had mandated the president to announce the date of elections after consultation with the ECP.

The president is right that according to Article 48(5) it is his duty to appoint a date for the general election no later than 90 days from the date of the dissolution of the National Assembly. But in seeking to exercise that role, he has chosen to overlook a major detail given in the beginning of Article 48 of the constitution which binds him to act only on advice of the federal cabinet or that of the prime minister, in exercise of all his functions as defined under the constitution. Since he has not received that advice, how does he plan to navigate this move?

Unfortunately, the relationship between the CEC and the president, both constitutional positions, has been less than exemplary especially since the controversy on the election to the provincial assemblies of Punjab and Khyber Pakhtunkhwa. In February 2023, President Alvi had accused the ECP for ‘finding excuses’ instead of announcing dates for Punjab and KP elections, and shared public displeasure against the ECP on non-performance of its ‘constitutional duties.’ The ECP then had not only declined the meeting proposed by the president but had shot back that it was well aware of its constitutional and legal obligations.

President Alvi has not only been accused by parties other than the PTI for serving as its puppet, he has also been criticized for not rising to play the impartial role of president as defined in the constitution.

The ECP had earlier taken strong exception to the president’s use of words for the commission, writing that it expected an impartial president to have better choice of words while addressing other constitutional institutions. The ECP would have expected support from the president in the face of Mr Imran Khan as PM and his key cabinet colleagues publicly demanding resignations from the CEC and other commissioners. Instead of providing support in the face of brazen party attacks against the ECP, the president chose to join the chorus in reprimanding the ECP for not playing its role despite the issue of election dates being subjudice at the time.

Not just with the ECP, but the president has chosen not to play an impartial role even as he saw the change of federal government after a successful vote of no-confidence against his party chairman. Who has forgotten that the president refused to take oath from former PM Shehbaz Sharif and his federal cabinet on April 11, 2022 on health grounds and the Senate chairman had to administer the oath? As PM, Shehbaz Sharif met with President Alvi on April 20, 2022 after which the president administered oath to some of the remaining members of the cabinet on April 23, 2022. He also refused to act on Sharif’s advice to remove the governor of Punjab.

The refusal to administer the oath was not just considered quite unusual and politically partisan but also unprecedented in Pakistan’s history. Previous presidents had done no such thing even after the parties that nominated them for the role of president had been ousted from power. Justice (r) Mohammad Rafiq Tarar (1998-2001) administered oath to Gen Pervez Musharraf’s cabinet. Gen (r) Pervez Musharraf (2001-2008) had administered oath to Mr Syed Yusuf Raza Gilani as prime minister and Mr Mamnoon Hussain (2013-2018) had administered oath to Mr Imran Khan as PM.

Before swearing on oath to have not given assent to the Official Secrets Act and the Pakistan Army Amendment Act, the president had earlier refused to give assent to at least six laws passed by parliament during the life of the 15th National Assembly.

In fact the very tone and tenor of the back and forth communication between the president and the CEC had led to the CEC writing to presiding officers of parliament in April 2023 proposing that the Elections Act, 2017 be amended to do away with the president’s power to appoint the date of general election and that power should be vested in the ECP instead. The ECP invoked the original Representation of the People Act, 1976 under which the power of appointing election date rested with the ECP before it was amended by Gen Ziaul Haq in 1985 to assign that power to himself as president. It was apparently an oversight that the clause was replicated without amendment in the Elections Act, 2017.

In amending the Elections Act, 2017 through the Election (Amendment) Act, 2023, parliament apparently concurred with the reasoning offered by the CEC that the role of the president to appoint a poll date on the advice of PM was not supported by any constitutional provision and instead it went against the spirit of the constitution and resulted in dilution of the authority of the constitutional mandate vested in the ECP.

The dichotomy between the two powers, one defined under the constitution and one amended through the law, will again land this question for interpretation by the judiciary. The ECP’s notification of delimitation schedule, alleged to be a step towards delaying the general election, has already landed before the courts. However, the time spent in adjudication of these critical issues should not serve towards a further delay in the election.

The writer is an analyst working in the field of politics, democratic governance, legislative development and rule of law.