Legal eye: The ticking bomb

The foremost conspiracy theory doing the rounds is that a government of technocrats is in the offing, and will be installed by utilising the Bangladesh model. The Bangladesh model is short for non-representative institutions – the military and the judiciary – stepping in to hold the skies together out of necessity when they are caving in due to corrupt and inept politicos. It’s a coup of sorts: a government of technocrats is installed and general elections delayed with a stamp of approval by the judiciary – supposedly to cleanse the system and make it ‘safe’ for democracy.

Javed Hashmi had claimed during Dharna I that such a plan was afoot. The Supreme Court headed by the then Chief Justice Nasir ul Mulk had considered the election rigging challenge and dismissed it saying there was no basis to conclude that Election 2013 was stolen through an organised conspiracy. Given that the Bangladesh model depends on the judiciary legitimising it, the conspiracy theory dissipated and so did Dharna I. The theory has been dusted and brought out again. Even PM Abbasi has asserted that a technocrats’ government is no solution for Pakistan.

There is no provision in our constitution permissive of the Bangladesh model. But there was probably none even in Bangladesh where it was conceived (and where it failed to attain its stated objects, like all martial laws in Pakistan). But let us assume for a moment that we have learnt nothing from our history (and that of others like Bangladesh) and a conspiracy is being brewed to transfer control to technocrats of the already diminishing domain of the state that is presently in the hands of politicos. How will it work?

A census has many critical purposes. One of them is that population count is used to allocate seats between federating units and to delimit constituencies. According to Census 1998, Pakistan’s population was 135 million. According to Census 2017, it has risen to 208 million. Thus, allocation of seats and delimitation of constituencies undertaken on the basis of the 135 million count will be inherently unfair when the number has gone up to 208 million.

If Election 2018 is held on the basis of seat allocation and delimitations resting on Census 1998, such election will be vulnerable to a constitutional challenge. In a democracy the ‘one person, one vote’ principle ensures political and legal equality. A federating unit gets representation in parliament on the basis of its respective population. According to the preliminary results of Census 2017, the overall share of Punjab in Pakistan’s population has decreased. Thus, the number of seats allotted to Punjab in parliament should also be reduced proportionately.

The size of constituencies ought to be comparable to uphold citizens’ right to an equally ‘weighted’ vote. If constituency A comprising 100,000 citizens elects one representative and constituency B comprising 200,000 citizens also elects one representative, citizens of constituency B will stand disenfranchised due to vote dilution. A fair delimitation process needs to guard against gerrymandering – that is, constituencies must not be drawn in an artificial way to bunch together and ‘waste’ the votes of a particular group likely to vote a certain way.

The bottom line is that if Election 2018 is held on the basis of Census 1998, it will be an open invitation to those interested in disputing results or disrupting transfer of power to the next elected government. And if Election 2018 is to be held on the basis of Census 2017, we are running late.

Article 51(3) of the constitution specifies the distribution of 332 seats in the National Assembly between the federating units (excluding 10 seats reserved for non-Muslims). Article 51(5) then states that, “seats in the National Assembly shall be allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published.”

The media has so far been focused on the “officially published” bit of Article 51(5). But can seats be allocated on the basis of Census 2017, even if officially published, without amending Article 51(3)? Article 51(5) doesn’t state that it will override 51(3). And 51(3) doesn’t say that seats will automatically stand adjusted on the basis of allocations made under 51(5). This might be a lacuna in the text. But it is one that will require judicial interpretation or else it can be exploited.

Let’s now come to Elections Act, 2017 and work backward on timelines.

Section 14 requires that the ECP, “shall, at least four months before the general election is due to be held on expiry of the term of an Assembly, prepare a comprehensive Action Plan specifying all legal and administrative measures that have been taken or required to be taken in respect of the election”, including, “delimitation of constituencies”, “revision of electoral rolls”, “preparation of constituency-wise list of polling stations and list of polling personnel”, etc.

If Election 2018 is due by August 5, this action plan must be ready by April. Section 17(2) mandates the ECP to delimit constituencies “after every census officially published.” If such delimitation is to be undertaken on the basis of preliminary census results, Section 17(2) and Article 51(5) of the constitution both need amendment. After such amendment or official publication of results, the ECP is to publish a preliminary report on delimitation (after holding inquiries, considering representations, summoning witnesses and recording evidence).

A 30-day period is prescribed after publication of the preliminary report to invite public representations in respect of such report, after which the ECP is to publish a final report after considering representations within 30 days of the last date fixed for receipt of representations. In other words, if the ECP were Hercules with magical abilities and who burnt the midnight oil, it would take it at least a month to undertake preliminary delimitation after receipt of census results, and then two further months for receipt of representations and preparation of the final report.

This brings us to the preparation of electoral rolls, which logically needs to happen after the delimitation process is complete. Under Sections 28, 30, 34 and 35 of the Elections Act, the ECP is required to publish the preliminary electoral roll for a 30-day period, followed by a 30-day period for receipt of complaints, which is followed by a 30-day period for corrections and publication of the final roll. In view of these timelines, the ECP needs three months to delimit constituencies and another three for roll preparation. And all this needs to happen by April 5, 2018.

Let’s say the April deadline is recommended but not mandatory. Section 39 states that there can be no change made to electoral rolls 30 days before the term of the assembly is about to expire. This makes May 5, 2018 the absolute cut-off date. In short only if the ECP initiates the delimitation process by November 5 could it possibly complete delimitation and preparation of rolls by May 5. So we have about two weeks to address the ambiguity in Article 51 and amend Article 51(5) and Section 17 to initiate delimitation on the basis of the preliminary census data.

The ECP has to undertake delimitation on the basis of the latest census. The tenure of assemblies expires on June 5. If delimitation and preparation of rolls hasn’t been undertaken on the basis of Census 2017, elections won’t be possible within the prescribed 60-day period. But Article 254 of our constitution states that, “when an act or thing is required to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that is was not done within that period.”

Planning to hold Election 2018 on the basis of Census 1998 or not taking all legislative and administrative measures to ensure that delimitation and preparation of rolls on the basis of Census 2017 take place prior to the installation of the interim government is tantamount to inviting a roll-out of the Bangladesh model. If politicos fail to act now, they must not yell conspiracy later.

Email: sattar@post.harvard.edu

The writer is a lawyer basedin Islamabad.