Decoding any election delays
The census of Karachi has already been challenged by the Muttahida Qaumi Movement
The writer is a lawyer, Chevening Scholar, with experience in policy framework, litigation, judicial interpretation, and taxation. You can reach him on hyshah1@gmail.com or you can follow him on twitter hyshah1
The current season of political uncertainty, shaky statements in the press by seasoned politicians and the recent high court decision about delimitations, has sent rumour mills churning and sputtering about the possibility of elections 2018 being delayed. So the important question is if such a scenario exists and if there are any such chances how will it be put into effect?
The timing of elections has been clearly decided in the Constitution of Pakistan. The Constitution has overlaying power over other laws and therefore any delay which has to come regarding elections, has to be by working around the Constitution first or it has to address the way the Constitution implements the elections, or enforces its deadline.
The powers that are being ignored and underlying currents
The foremost important strength that the Election Commission, and its intent to conduct elections 2018 comes from the “inertia” borrowed from Election Laws 2017, read with the integral Part VIII Article 213 till 226 of the Constitution of Pakistan. Within the preview the powers of the Election Commission to hold elections it has been granted immense powers much beyond the comprehension of many, to conduct, organise, plan the election and on top of that even disqualify or bar anyone from contesting the polls.
I may even predict that the recent Supreme Court’s decision to disqualify former three-time Prime Minister Mian Nawaz Sharif will invariably supplement and enhance the powers of the Election Commission to unimaginable levels in the coming elections.
Despite its numerous issues, and critiques, Election Laws 2017 has passed on immense powers to the Election Commission on the following fronts. Firstly, to conduct delimitation, devise proper delimitation mechanism and to entertain or reject any appeal on the issue of such delimitations. Secondly, it is to prepare electoral rolls in time. Thirdly, which evades the eyes of the many “learned analysts” is the power the Election Commission, and its staff, has to implement Article 62 to the spirit, ie, disqualify anyone who the Elections Commission officials think is not saadiq or ameen. Fourthly, election laws read with the powers of the Constitution the Election Commission can even call on armed forces for their help if need be. Therefore, when a single member of High Court has challenged some of the delimitations, these will be re-challenged in no time at a higher forum such as a Division Bench of a High Court or even in the Supreme Court. The collective wisdom of the higher forum will look at the following reasons for not challenging the delimitation carried out by the Election Commission. For one, the need of a few constituencies cannot outweigh the needs of millions. Two is a possible delay within the political scenario that could spark a political crisis which will eventually lead to political uncertainty in the country. We need to understand why a poll delay may not be good for the country or its interests especially a multibillion-dollar project such as CPEC.
Three, the process of delimitation, rejection of appeals against decisions made by the Election Commission must be carried out with care, and within given time resources. The wisdom of months cannot be undone, and it is only natural that some seats may be affected, but the Election Commission cannot possibly please all or accommodate everyone in the process. Even the interim prime minister, or the incumbent president, cannot override or sanction any delay in the election schedule. If there is a delay, it will only come from the Supreme Court of Pakistan.
Hypothethical scenario: how can the elections be postponed then?
The important question to consider is whether there is indeed any chance to “delay” the elections? The following discussion is hypothetical, and without any prejudice to anyone. For one let us assume that the Constitution is suspended, due to some extreme emergency which God forbid has befallen the country. Elections will be postponed. To offer a few scenarios, economic crisis due to debt and financial emergency is one such crisis which can be called or reasoned for enforcing an emergency in the country or suspending the Constitution. The other area is that the recently-held population census which has been conducted (which already stands challenged in the Supreme Court) is declared illegal or faulty. This may lead to unearthing some bigger issues which may turn out to be bigger than holding elections on time. The census of Karachi has already been challenged by the Muttahida Qaumi Movement which believes it is aggrieved due to loss of potential seats in the National Assembly.
However, the route to an emergency again falls within the ambit of the Constitution and the interpretation of the wordings which can only be done by the superior courts. Once again, the mood of the superior courts at present, as we jurists watch with great care, is not to entertain any such scenarios.
Published in The Express Tribune, June 8th, 2018.
The timing of elections has been clearly decided in the Constitution of Pakistan. The Constitution has overlaying power over other laws and therefore any delay which has to come regarding elections, has to be by working around the Constitution first or it has to address the way the Constitution implements the elections, or enforces its deadline.
The powers that are being ignored and underlying currents
The foremost important strength that the Election Commission, and its intent to conduct elections 2018 comes from the “inertia” borrowed from Election Laws 2017, read with the integral Part VIII Article 213 till 226 of the Constitution of Pakistan. Within the preview the powers of the Election Commission to hold elections it has been granted immense powers much beyond the comprehension of many, to conduct, organise, plan the election and on top of that even disqualify or bar anyone from contesting the polls.
I may even predict that the recent Supreme Court’s decision to disqualify former three-time Prime Minister Mian Nawaz Sharif will invariably supplement and enhance the powers of the Election Commission to unimaginable levels in the coming elections.
Despite its numerous issues, and critiques, Election Laws 2017 has passed on immense powers to the Election Commission on the following fronts. Firstly, to conduct delimitation, devise proper delimitation mechanism and to entertain or reject any appeal on the issue of such delimitations. Secondly, it is to prepare electoral rolls in time. Thirdly, which evades the eyes of the many “learned analysts” is the power the Election Commission, and its staff, has to implement Article 62 to the spirit, ie, disqualify anyone who the Elections Commission officials think is not saadiq or ameen. Fourthly, election laws read with the powers of the Constitution the Election Commission can even call on armed forces for their help if need be. Therefore, when a single member of High Court has challenged some of the delimitations, these will be re-challenged in no time at a higher forum such as a Division Bench of a High Court or even in the Supreme Court. The collective wisdom of the higher forum will look at the following reasons for not challenging the delimitation carried out by the Election Commission. For one, the need of a few constituencies cannot outweigh the needs of millions. Two is a possible delay within the political scenario that could spark a political crisis which will eventually lead to political uncertainty in the country. We need to understand why a poll delay may not be good for the country or its interests especially a multibillion-dollar project such as CPEC.
Three, the process of delimitation, rejection of appeals against decisions made by the Election Commission must be carried out with care, and within given time resources. The wisdom of months cannot be undone, and it is only natural that some seats may be affected, but the Election Commission cannot possibly please all or accommodate everyone in the process. Even the interim prime minister, or the incumbent president, cannot override or sanction any delay in the election schedule. If there is a delay, it will only come from the Supreme Court of Pakistan.
Hypothethical scenario: how can the elections be postponed then?
The important question to consider is whether there is indeed any chance to “delay” the elections? The following discussion is hypothetical, and without any prejudice to anyone. For one let us assume that the Constitution is suspended, due to some extreme emergency which God forbid has befallen the country. Elections will be postponed. To offer a few scenarios, economic crisis due to debt and financial emergency is one such crisis which can be called or reasoned for enforcing an emergency in the country or suspending the Constitution. The other area is that the recently-held population census which has been conducted (which already stands challenged in the Supreme Court) is declared illegal or faulty. This may lead to unearthing some bigger issues which may turn out to be bigger than holding elections on time. The census of Karachi has already been challenged by the Muttahida Qaumi Movement which believes it is aggrieved due to loss of potential seats in the National Assembly.
However, the route to an emergency again falls within the ambit of the Constitution and the interpretation of the wordings which can only be done by the superior courts. Once again, the mood of the superior courts at present, as we jurists watch with great care, is not to entertain any such scenarios.
Published in The Express Tribune, June 8th, 2018.