‘Deciding election date president’s prerogative’

The legal experts have rejected the impression that giving the date for the National Assembly elections was the prerogative of the Election Commission of Pakistan (ECP), concurring that it was a power that rests with the President of Pakistan.

They also condemned the election supervisor’s move to turn down President Arif Alvi’s request for a meeting, stating that the president was the head of the state, and that Chief Election Commissioner (CEC) Sikandar Sultan Raja should have shown respect the president office commands.

They said in case the meeting had taken place, the ECP could have kept its observations, concerns and limitation before the president and a better sense would have prevailed.

The excuse the polls supervisory body has cited to turn down the meeting, are the recent amendments to the Election Act 2017, under which the CEC has been empowered to fix the date for elections without the president’s input.

The legal experts recalled that the ECP had turned down the president’s request earlier in February too when Alvi wanted to consult the dates for holding polls to the Punjab and Khyber-Pakhtunkhwa elections. The election supervisor at the time cited the reason that the matter was sub judice.

It is pertinent to mention that the CEC met with US Ambassador Donald Blome on Thursday.

A plain reading of the Constitution reveals that the powers to give a date, in case the president dissolves the National Assembly on the advice of the prime minister within 90 days, rests with the president.

The contention being raised by the ECP pertains to the changes in Election Act 2017, which was a sub constitutional legislation ergo has no overriding effect on the requirement laid down in the Constitution.

Article (5) of the Constitution states, “Where the President dissolves the National Assembly, notwithstanding anything contained in clause (1), he shall,— (a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly”.

Since in this particular instance, the president did dissolve the assembly on the advice of the prime minister its becomes incumbent on the president to give the date.

On the other hand, what the ECP apparently says, is that the president can only give date for election if he dissolves assembly on his discretion under article 58 (2), which is in the case when no one person manages to get a clean majority after a successful vote of no confidence against the prime minister.

The understanding from the election supervisor’s stance is that when the assembly is dissolved under article 58(1), which is when the president dissolves assemblies on advice, the powers rests with the commission and in that case Article 48(1) applies which states that the president will act on the advice of the prime minister/cabinet.

Following simple principle as laid down in the Constitution, if the president gives date for the NA elections, then dates for Sindh, K-P and Balochistan polls would be given by their respective governors under Article 105(3A) of the Constitution.

Justice (retd) Shaiq Usmani said that the President of Pakistan had the constitutional authority to give a date in this case, but it would be better if he leaves it to the ECP as prior to the holding of polls, the delimitation process needed to be completed. He said the president should not give this order.

Referring to an old principle, he said, never give an order which you know cannot be obeyed.

He, however, express is dismay over the ECP’s decision to turn down the president’s request for a meeting. The CEC should have met the president, he added.

Justice (retd) Wajihuddin Ahmed said Article 48(5) was unambiguous and it was not president’s power rather an obligation on him. He said since there is not dispute on the question of dissolution of NA assembly so Article 48 (5) gets invoked.

He noted that the ECP’s contention was “flat out wrong”, adding that through amendments in sub-constitutional legislations, they (outgoing PDM government) had tried changing the Constitution, which was unconstitutional.

He said this matter would land in the court.