Interim PM’s extended stay challenged in ECP

The Election Commission of Pakistan (ECP) has been requested to declare the “extended stay” of caretaker Prime Minister Anwaarul Haq Kakar beyond the prescribed timeframe as unconstitutional.

The request was made through a plea filed before the ECP praying to restrain the caretaker PM from holding his office and carrying out its functions till the matter was decided by this commission.

The plea was filed by Muhammad Muqsit Saleem making caretaker PM, cabinet division through its secretary, and the ECP through its chief election commissioner as respondents.

The petitioner contended in his plea that on Aug 14 the caretaker PM took oath of his office followed by the oath of his cabinet on Aug 17. The caretaker government ceased to exist on Nov 15, and any administrative or financial decisions made by it would be illegal and invalid.

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Regardless of any political narrative, this question required serious consideration and in-depth judicial attention because an extension in the date for holding elections could not automatically imply that the caretaker government’s mandate was automatically extended as well.

He implored in his plea that the caretaker government was appointed to oversee the country’s administration in the run-up to the general elections, with the mandate to ensure free, fair, and transparent elections, as well as to maintain law and order during the electoral process.

“If elections are not held within the timeframe specified by the Constitution, the mandate of the caretaker government should typically end but this does not appear to be so simple, especially given the current political climate, in which every player appears to be hand in gloves to dismiss any legal or constitutional hiccup or issue without close scrutiny.”

He added that the National Assembly was dissolved by the president of Pakistan on the advice of the prime minister under Article 58 (1) of the Constitution of Pakistan after which he was constitutionally bound to appoint a date of election of the new government within 90 days of dissolution.

The respondent ECP was bound to ensure free and fair elections under Article 218 which must correspond with other provisions of the Constitution, including Article 224 and 48(5).

The Constitution specifies 90-day and 60-day election periods. According to Article 224 (1), a general election to the National Assembly or a provincial one must be held within 60 days of the day the assembly’s term expired.

According to Article 224 (2), when the National Assembly or a provincial one was dissolved, a general election to the assembly must be held within 90 days of the dissolution, and the results must be declared no later than 14 days after the polls close.

However, any constitutional provision, this provision, understandably, does not provide unlimited flexibility or excuse intentional or deliberate violations of timelines or deadlines.

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The provision only applied in cases where a good-faith effort to comply with the requirements was made, but circumstances beyond one’s control prevented timely completion of the action; therefore, it was critical to ensure that the provision was not abused to justify intentional or deliberate non-compliance with timelines or deadlines.

However, the current caretaker government had continued to function well beyond the statutory limit, which was a blatant violation of the constitutional rights and an attack on the very foundation of democracy.

The caretaker government's extended stay raised concerns about its legitimacy and the intentions of those who were in power. Article 224 of the Constitution of Pakistan outlined the provisions for the caretaker government.

The article implied that the caretaker government shall remain in office for a period not exceeding 90 days, and that the primary function of such a government was to hold free and fair elections.

“The incumbent caretaker government has failed to fulfil its responsibilities and proven to be ineffective in resolving critical issues that are detrimental to society,” the plea stated. “This extended stay of the caretaker government is a violation of the Constitution and an affront to the rule of law.”