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COMMENT: Presidential powers vs ECP’s mandate
IN the labyrinthine world of Pakistan’s politics, a constitutional puzzle looms large: who wields the authority to announce the date for the impending general elections?
This contentious issue has sparked heated debates and divided opinions, leaving the nation on edge. At the core of this conundrum lies the clash between the president’s powers and the Election Commission of Pakistan (ECP)’s mandate, all played out against the backdrop of a rapidly changing political landscape.
To dissect this complex issue, we must first understand the two distinct scenarios that frame the dissolution of the National Assembly:
Presidential dissolution (on PM’s advice): Article 224(2) of the Constitution deals with this scenario, which dictates that elections should be held within 90 days of dissolution. Importantly, Article 48(5) of the Constitution takes precedence in this case, as it clearly designates the president as the authority to announce the election date.
Dissolution by operation of law: In this situation, Article 224(1) stipulates a 60-day timeframe for conducting general elections. Here, the president’s power to announce the election date is not activated, and the ECP steps in, making use of Section 57 of the Elections Act, 2017, which empowers it to unilaterally announce election dates.
Crucially, the recent amendment to Section 57 of the Elections Act, 2017, that grants unilateral powers to announce an election date to the ECP, must be understood within the constitutional context. These amendments should be interpreted as applicable only when assemblies are dissolved by operation of law. Former law minister Azam Nazir Tarar is on record as admitting this legal position.
Article 48(5) of the Constitution governs the dissolution of assemblies by the president, on the prime minister’s advice. Specifically, sub-clause (a) unequivocally allocates the authority to declare election dates to the President and (b) to appoint caretakers. Clause (b) refers to the president’s powers being exercised in accordance with Articles 224 and 224A of the Constitution.
Article 48(5)(a) concludes with the conjunction “and,” implying compliance with both (a) and (b). Read together with Article 224, it suggests that when the president triggers assembly dissolution, the power to announce the subsequent election date should be wielded by him.
In this light, the legality of Section 57 of the Elections Act, 2017, becomes questionable when the Constitution explicitly vests the authority to announce dates in cases of assembly dissolution in articles 48(5) and 224.
Despite these constitutional provisions, the ECP continues to play a significant role in this process. The ECP’s unilateral announcement powers, as bestowed by Section 57, should only come into play when assemblies dissolve through operation of law. The Constitution empowers the ECP to regulate election conduct through constitutional and legal means, affirming its role as a complementary, not exclusive, actor in the election date announcement process.
Unresolved controversy
The ECP’s argument hinges on the notion that this timeline aligns with the law. But does it? The Elections Act, 2017, provides ample room to expedite delimitations. The entire delimitations process can be accomplished within 54 days or even sooner.
Hence, the claim that delimitations are an insurmountable hurdle is questionable, as the Elections Act itself provides ample flexibility for conducting this process well within the constitutionally mandated 90-day period.
This ongoing debate highlights the delicate balance of power within Pakistan’s political framework. It showcases the intersection of legal principles, traditions, and evolving statutes and questions who should hold the ultimate authority to announce the election date.
Legal experts resolutely contend that Article 48(5) of the Constitution designates this authority to the President, with the ECP’s role being supplementary.
Yet, the president’s position, as articulated in his letter to the chief election commissioner, has sparked ambiguity. Reports of external pressures and Establishment involvement have added layers of complexity to the issue.
This uncertainty, combined with the president’s reluctance to adopt a clear stance, risks further judicialising Pakistani politics and placing the incoming Chief Justice in a challenging position.
High stakes
This constitutional debate assumes profound importance because if no one steps up for elections, the handpicked caretaker setup may linger, solidifying the establishment’s role.
Pakistan could relive the nightmare of Zia’s promise to hold elections in 90 days, which ended up becoming 11 long, dark years. Therefore, resolving this enigma is not just a matter of constitutional interpretation; it is essential to safeguarding the principles of democratic governance in Pakistan.
The nation awaits a resolution to this question, one that is fundamental to the principles of democratic governance in Pakistan.
The author is a practising lawyer and teaches at Lums
Published in Dawn, September 14th, 2023
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