The federal government of Pakistan has staunchly refused to accept the recent interpretation of the constitution by the Supreme Court regarding election dates in Punjab. (While a suo motu issued by the chief justice may or may not be justified, everyone can agree that interpretation of the constitution falls within the competence of the Supreme Court in almost all common law jurisdictions).
Among other reasons, the government asserts that simultaneous elections should be held in all assemblies, even if two provinces – Punjab and Khyber Pakhtunkhwa – currently do not have an elected government. Why does the government want to have simultaneous elections? Are they warranted?
The government first argued that security concerns and financial constraints prevent it from holding elections immediately – arguments that were rejected by the court while wondering how these constraints would disappear by October. However, the government now also fears that it will almost be impossible to hold free and fair elections under a newly elected Punjab government – as alluded by Interior Minister Rana Sanaullah – providing an underlying assumption of a victory for the opposition party.
Although it is true that a provincial government can sway elections through indirect tactics, it is not a valid reason for depriving 110 million people in Punjab from their right to vote and elect their representatives. As the constitution envisions, the federal caretaker government and the Election Commission of Pakistan will ensure free and fair elections regardless of the executives in Lahore and perhaps Peshawar (the Khyber Pakhtunkhwa election case is still sub judice).
In line with Article 224 (2), the country’s constitution requires that new elections be held within 90 days of the dissolution of any of the country’s legislative assemblies, both central and provincial. Even though the constitution’s language is clear and precise, the Supreme Court has clarified that the Election Commission of Pakistan does not have the authority to delay elections. In fact, the Supreme Court allowing the ECP minimum deviation from 90 days is a rather liberal interpretation from the perspective of a constitutional purist.
The Supreme Court in and by itself does not have the authority to delay elections unless it uses the doctrine of necessity that legitimized dictatorships in Pakistan in the past. For certain, the executive branch, too, cannot deviate from the constitution without amending it. If the executive branch has a supermajority in parliament, it can amend the constitution in line with Article 239 (1) by securing votes of not less than two-thirds of the total membership of the House. However, the current government does not have a supermajority in the House.
If the current government really believes that provincial and federal elections should always happen simultaneously, perhaps it should dissolve the National Assembly. If it is re-elected with the required supermajority, it can pass a constitutional amendment in the next parliament.
Looking at other federations, one finds non-synchronized elections around the world. In Canada, Ontario held its elections in 2022 whereas federal elections were held in 2021. If we look at our neighbour, state elections are held in disparate times. Karnataka, formerly Mysore, is holding its election in May 2023 to elect all 224 members of the Karnataka Legislative Assembly, whereas the Lok Sabha, the lower house of the Indian parliament, is expecting to hold elections in May 2024.
Like other big federations, Pakistan cannot synchronize all provincial elections with the federal government indefinitely. Imagine a future where Punjab gets a hung parliament with a weak coalition government in a so-called simultaneous election in October. What would happen then? Would Punjab live under a caretaker government for the next few years?
Delaying elections in Punjab will have ramifications for democracy for generations. The Supreme Court cannot put its stamp of approval on anti-constitutional demands; therefore, the government should assist the ECP in holding elections immediately.
The writer studied Grand Strategy at Yale University and was an editor at YaleGlobalOnline. He tweets @hassansiddiq
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