Will he or won’t he?

This is the question that’s on observers’ minds as reports swirl that President Arif Alvi would unilaterally announce an election date.

Since the president signed off on the National Assembly’s dissolution on August 9, the Election Commission of Pakistan (ECP) has kept mum on the matter.

Ideally, in this case, elections should be held within 90 days of August 9. However, the outgoing PDM government’s decision to approve the 2023 census had complicated matters. The decision was followed by the ECP’s announcement of a delimitation schedule, which effectively ruled out the possibility of polls this year.

The president then invited the chief election commissioner to deliberate on an election date, saying he was duty-bound, according to Article 48 (5) of the Constitution, to get the elections conducted in the 90 days’ prescribed period once the National Assembly was dissolved prematurely.

Alvi’s RSVP was spurned in a terse letter, with the ECP chief saying recent amendments to the election laws meant meeting the president would be of “scant importance”.

The amendments the chief election commissioner was referring to were Sections 57 and 58 of the Election Act 2017, which allow the Election Commission of Pakistan (ECP) to bypass the president and unilaterally announce election dates.

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Under pressure from the PTI, the president met with interim Law Minister Ahmed Irfan twice to convince the caretaker setup to expedite the election process.

However, the ministry remained adamant that the election date was the sole prerogative of the ECP and not the president.

This brings forward the question: Do Election Act amendments hold precedence over the Constitution?

In light of this question, Dawn.com reached out to experts on the legal status of the president possibly announcing the election date.

‘Constitution over all’

Political commentator Abdul Moiz Jaferii, a senior partner, litigation lawyer and consultant at HWP Law states: “The president derives his power to announce the election date from the Constitution. This is an authority which takes primacy over any claims that the ECP may make with regard to their power to announce electoral dates, which are derived from the law which governs them.”

He added that the power of the ECP, in any case, is subject to the constitutional command of elections within 90 days of an assembly’s dissolution, which the president is seeking adherence to: “There is very little by way of leverage here in terms of the law.”

If the ECP opts to disregard the president’s announcement, this issue ought to reach the Supreme Court directly where “any judge would be hard pressed to read the Constitution in any way which would allow for a break from the 90 days elections deadline,” says Jaferii.

‘Subordinate legislation’

Barrister Ahmad Pansota, founding partner at Ahmed & Pansota and legal analyst, holds a similar view, stating that “the power of the president to set a date [for election] under Article 48(5) is independent power under the Constitution; it is not subservient to any other provision of the Constitution.”

This power has to be read in conjunction with Article 224, which mandates that elections be held within 90 days, in case the assembly is prematurely dissolved, says Pansota. “Even in that case, it is his power.”

He argues that the recent amendments to the Election Act are subordinate legislation [to the Constitution], which are in conflict with the provisions of the Constitution: “If there is any such conflict, then, of course, the Constitution prevails and here, I believe the Constitution shall prevail and the president is duty-bound to give an election date under Article 48(5).”

‘The ECP should do its job’

Barrister Rida Hosain argues that the president holds constitutional authority to appoint the date for elections. “This constitutional power cannot be taken away or overridden through ordinary legislation,” she says.

“Crucially, the amended Section 57 states that it is ‘subject to the Constitution’. Even otherwise, ordinary legislation is subordinate to the Constitution.”

Hosain further comments that “the amendment can only engage when the Constitution is silent. In the current situation, President Arif Alvi dissolved the National Assembly on the prime minister’s advice. When the president dissolves the National Assembly, it is the president that shall appoint a date for general elections under the Constitution.”

Commenting on the ECP’s role Hosain says, “The primary duty of the ECP is to organise and conduct elections honestly, justly, fairly, and in accordance with law. The ECP should do its job.”

‘Too little, too late’

Special Assistant to the Sindh Chief Minister, Mirza Moiz Baig and former associate to the Attorney-General for Pakistan, comments that while the recent amendments to the Election Act dispenses the ECP from consulting the president on the announcement of an election date, the Election Act cannot depart from the command of the Constitution.“

However, Baig also points out that “the entire episode also betrays the president’s scant regard for the Constitution”. “It may be borne in mind that the president had given his assent to the amendments to the Election Act. More importantly, the president continued to procrastinate after the dissolution of the assembly, choosing to consult the ECP only towards the end of his tenure.

“It is, thus, inescapable that the president’s attempt to consult the commission or unilaterally announce an election date is merely an attempt to secure his post-retirement political career.”

Necessary checks and balances

Lawyer Ayman Zafar, legal associate at SR Law, states that the recent amendment to the 2017 act, has “effectively relegated the presidential role to a mere formality, a move that appears to be in contravention of the constitutional provisions outlined in Article 48(5).

“This has altered the previously consultative process, prompting concerns about its compliance with the fundamental tenets of the Constitution.

“There is a degree of uncertainty regarding the predictability of this [newly outlined] process. It is conceivable that the ECP may announce an election date and subsequently adjust it as it deems necessary, raising questions about the flexibility and discretion inherent in this newly vested power.”

“Thus, it is imperative to acknowledge that any actions taken by the president in light of the issuance of a date for elections, should not be termed as being ‘indicative of unilateral presidential action’, but rather as a lawful and constitutionally-embedded process aimed at upholding the principles of democracy and the rule of law,” says Zafar.

Zafar believes that the legal provisions in the Constitution emphasise the importance of checks and balances within Pakistan’s political framework.