ECP has right to set election date, law ministry to President Alvi

ISLAMABAD: In response to President Arif Alvi's letter, the Ministry of Law and Justice on Wednesday informed the head of the state that it was of the view that the Election Commission of Pakistan (ECP) has the “authority to announce or appoint date” for holding and conducting general elections to the national and the provincial assemblies.

The ministry, through its secretary, responded to the president’s letter seeking the ministry’s input on ECP’s response that there was no need for the election watchdog to consult the president on appointing the election date.

Last week President Alvi had written to the ministry to seek “advice” on the ECP’s letter contending that the head of the state is no longer empowered to fix the polls' date.

In a statement on X, formerly known as Twitter, the President House said that Alvi had written the letter to the ministry’s secretary on the ECP’s response with regard to the letter he had sent for a meeting to decide the election date.

The ECP responded to the president's letter — in which he had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja — stating he was no longer empowered to fix the date for polls after amendments in election laws.

The development came in a meeting chaired by CEC Raja to ponder over the matter and concluded that the meeting would be of "scant consequence".

Dr Alvi, in the letter to the CEC, said since the National Assembly was dissolved on August 9, 2023, under Article 48 (5) of the Constitution, he (as the president) was obliged to appoint a date not later than 90 days from the date of dissolution for the holding of general election of National Assembly.

The ministry, in its response today, explained that Article 48(5) empowers the president to appoint a date for holding general elections to the National Assembly only in the case where the lower house has been dissolved by the head of state by “invoking Article 58(2) of the Constitution of Pakistan”.

“In the present scenario, the National Assembly stood dissolved on the advice of the Prime Minister in terms of Article 58(1) of the Constitution. It may kindly be noted that the advice under Article 58(1) has a more binding effect than the advice under Article 48(1). Unlike Article 48(1), whereunder the President can send the advice back for reconsideration, Article 58(1) does not permit the President to send advice thereunder back for reconsideration. The advice under Article 58(1) becomes effective at the expiry of forty-eight (48) hours, which itself manifests that there is no discretion vested in the President to do anything but follow the advice,” said the ministry.

The letter also stated that “by no stretch of imagination” does Article 48(5) cover the dissolution of the National Assembly under Article 58(1).

“It is important to point out that even if, for the sake of argument, opinion of the President is accepted, the President would only be only competent to appoint a date for general elections to the National Assembly and not for the Provincial Assemblies, which defeats the purpose of holding and conducting elections for the whole country. Hence, section 57(1) of the Elections Act, 2017 was amended to empower the Election Commission of Pakistan to announce date or dates for general elections throughout the country; resultantly the power to announce or appoint a date for general elections vests with the Election Commission of Pakistan,” the ministry said.

It also stated that if the president’s stance would be followed then it would be, barring Punjab, the governors would appoint dates for the remaining three provincial assemblies and the ECP would appoint date for Punjab.

“Resultantly, there is every likelihood that the general elections to the National and to each of the four (4) Provincial Assemblies would be held on different dates. This cannot be so and if it so happens, will undermine the holding and conducting of free and fair elections throughout the country,” said the ministry.

The ministry concluded that in its view Articles 48, 58, 218 and 222 read with Section 57 of the Elections Act, 2017, make it clear that the ECP is the “competent authority to announce or appoint a date for holding and conducting general elections to the National Assembly and the provincial assemblies”.