Election delay and the rule of law

President Arif Alvi’s letter to the Chief Election Commissioner (CEC), proposing November 6, 2023 as date for general elections, has evoked a heated debate in the country. The letter, quoting Article 48(5) of the Constitution, states that the President of Pakistan is empowered “to appoint a date not later than ninety days from the date of dissolution, for holding of general elections to the Assembly”.

However, the CEC insists that fixing an election date falls within the domain of the Election Commission of Pakistan (ECP); and that it cannot be done without carrying out a fresh delimitation of constituencies on the basis of the last census results — a mandatory requirement stipulated by Article 51(5) of the Constitution and Section 17 of the Elections Act, 2017.

The ECP’s insistence has to be observed in the light of its past conduct when the provincial assemblies of Punjab and Khyber-Pakhtunkhwa were dissolved. Despite clear provisions of Constitution under Articles 58, 112 and 224, and judgment of the Supreme Court, declaring the Commission’s decision to delay the assembly elections in two provinces as “unconstitutional” and directing the government to hold election in the province of Punjab on May 14, the main issue to appoint the date of election was shrouded in the controversy of suo motu powers of the Supreme Court, paving perpetuity to caretakers.

Though the ECP has quoted Article 51(5) and Section 17, it has ignored Articles 48(5), 112 and 224 of the Constitution read with the preamble.

The preamble states that it is the will of the people of Pakistan to establish an order wherein the State shall have to exercise its powers and authority through the chosen representatives of the people. It also focuses on the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, which shall be observed in juxtaposition with Article 1 which pronounces Pakistan as a Federal Republic to be known as the Islamic Republic of Pakistan.

All the mentioned articles asserted by the President or ECP are constitutional commands, but when there is ambiguity, the meaning has to be found by reading the Constitution and statute as a whole.

The ECP, the federal government (PDM and now interim) and provincial governments got the elections delayed on the pretext of census — whose latest result was approved by the Council of Common Interest (CCI) — and conveniently ignored the command of the Constitution and Supreme Court as well as sections 14 and 230 of the Elections Act, 2017.

Section 14 of the Elections Act says the Commission 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 the delimitation of constituencies; revision of electoral rolls; preparation of constituency-wise list of polling stations and list of polling personnel.

Under section 230, Caretaker government is required to perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government; assist the Commission to hold elections in accordance with law; restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and be impartial to every person and political party. The same section also categorically directs that the caretaker Government shall not take major policy decisions except on urgent matters; take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government.

Under Article 51 sub clause (1) of the Constitution, the total seats allocated for the National Assembly are 326 which have been allocated on the basis of population in accordance with the last preceding census officially published. And the question is: since the National Assembly now stands dissolved, how could the new allocation be done and inserted into the Constitution?

The inference drawn from the scheme of arrangements in the Constitution and Elections Act is that the previous cabinet headed by the PM and the provincial CMs, including the caretakers, very well knew about section 14 of the Elections Act and the implications of approving census through a notification on 13^th January, 2022.

Apprehensions were already expressed that postponing the elections was tainted with malice. Moreover, participation of the caretaker chief ministers, and other leaders not part of CCI was also considered as a deviation from the Constitution and law.

This also brings us to the concept of Rule of law on which the foundation of democracy rests.

Renowned jurist Makdoom Ali Khan says that more insidious is the slow death of processes and institutions by a thousand cuts. The 1973 Constitution has remained in place since 1973. Amended frequently, suspended infrequently, ignored more often than applied, it has nevertheless survived. Its form however, has been compromised. Its substance seriously diluted. In the larger scheme of government action, it’s often irrelevant. Such disregard is not always condemned as unconstitutional. A deviation from norm is at times condoned as a mere technicality. An insistence on constitutional conformity is many times dismissed as pedantry.

Quoting the same jurist, “It is time to prefer politics and the rule of law to the temptation to dominate and control. Domination may produce order. Order is necessary for politics but not sufficient. Order without trust and inclusive neutral institution is tyranny. It leads to repression not rule of law.”

In view of the aforementioned aversions, it is hoped that the ECP will not further delay the election under any pretext, in negation of the spirit of parliamentary democracy and right of the electorate to be ruled through their chosen representatives.

Published in The Express Tribune, September 20^th, 2023.

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