Constitution suggests solution to Khursheed’s fear

ISLAMABAD: Leader of the opposition in the National Assembly Syed Khursheed Shah’s apprehension about possible delay in the upcoming parliamentary polls because of an “anomaly” in the two sections of the Elections Act is taken care of by the Constitution, which explicitly provides that it is mandatory to hold the electoral exercise within sixty days.

Article 224 of the Constitution says a general election to the National Assembly or a provincial assembly shall be held within a period of sixty days immediately following the day on which its term is due to expire unless it has been sooner dissolved.

The timeframe of “within sixty days” will apply in the instant case as all the assemblies will stand dissolved on completion of their five-year terms.

The second option, which is not applicable in the present scenario, arises when the legislatures are dissolved before the expiry of their terms. In that case, fresh elections will have to be held within 120 days.

Khursheed Shah seems to have ignored the categorical constitutional compulsion of holding polls within sixty days while voicing concern over delay in the upcoming elections. He quoted sections 14 and 22 of the Election Act to express his fear.

However, it is established beyond any doubt that the Constitution takes precedence over a subordinate legislation. If there is a conflict between the two, the Constitution prevails under all circumstances.

Section 14 says the Election Commission of Pakistan (ECP) shall, at least four months before the polls are due to be held on expiry of the term of an assembly, prepare a comprehensive Action Plan (AP) 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; enlistment of political parties; allocation of symbols; appointment and training of District Returning Officers (DROs), ROs, Assistant ROs, Presiding Officers (POs), Assistant POs, Polling Officers and other election officials; preparation of constituency-wise list of polling stations and list of polling personnel; determination and printing of requisite number of ballot papers and designation of printing presses; establishment of a transparent result management system for election results; introduction of any new technology; arrangements for election observers; appointment of the appellate and election tribunals; security measures; and monitoring mechanism to report progress regarding implementation of the AP. It shall carry out a post-election review of implementation of the AP to ascertain shortcomings, if any, with suggestions to further improve the electoral system. It shall include the post-election review in its next annual report and publish it on its website.

Section 22 reads the ECP may, at any time but at least four months before notification of the election programme, on its own motion and for reasons to be recorded, make such amendments, alterations or modifications in the final list of constituencies published or in the areas included in a constituency, as it deems necessary. It shall publish in the official Gazette and on its website the proposed amendments, alterations or modifications with their justifications and invite and hear representations in respect thereof before taking final decision thereon.

Thus far, the ECP has implemented or is in the process of completing implementation of almost all the elements of the AP, an exercise that started some months back. The last date for correction, transfer and enlistment in the electoral rolls will expire after four days.

Khursheed Shah apprehended that the ‘inconsistency’ in the Elections Act can raise questions over legitimacy of the elections and can be challenged in a court of law. He drew the ECP attention to sections 14 and 22 and said it was required to notify the new constituencies 120 days before the election date. It was due to do so on May 4, which meant that the elections should be held in the first week of September whereas the government has announced that the polls will be held in July. He proposed that an amendment could be made to remove the “anomaly” so that the elections could not be challenged.