Presidential powers vs ECP’s mandate

In Pakistan’s intricate political landscape, a perplexing constitutional puzzle dominates headlines: Who possesses the authority to declare the date for the impending general elections?

This enigmatic issue has ignited fierce debates, dividing the nation and creating an air of uncertainty. At the core of this intricate problem lies a collision between the president’s constitutional powers and the mandate of the Election Commission of Pakistan (ECP). This clash unfolds against a backdrop of swiftly changing political dynamics, shrouded in ambiguity and intrigue.

Dissolution of the National Assembly – two scenarios unveiled: To unravel this complex matter, we must first grasp the two distinct scenarios that frame the dissolution of the National Assembly:

First is presidential dissolution (on the prime minister’s advice). Article 224(2) of the constitution governs this scenario, dictating that elections must occur within 90 days of dissolution. Crucially, Article 48(5) of the constitution takes precedence in this context, unambiguously designating the president as the authority responsible for announcing the election date.

The second scenario is dissolution by ‘operation of law’. In this situation, Article 224(1) prescribes a 60-day timeframe for conducting general elections. Here, the president’s authority to proclaim the election date lies dormant, while the ECP steps in, invoking Section 57 of the Elections Act, 2017, to independently announce election dates.

The constitutional framework: It is imperative to interpret the recent amendment to Section 57 of the Elections Act, 2017, which grants unilateral election date announcement powers to the ECP, within the broader constitutional context. These amendments should be viewed as applicable only when assemblies dissolve by operation of law, a point explicitly acknowledged by the former law minister Azam Nazir Tarar.

Article 48(5) of the constitution governs the dissolution of assemblies by the president, acting upon the prime minister’s advice. Specifically, sub-clause (a) unambiguously assigns the authority to declare election dates to the president, and sub-clause (b) deals with the appointment of caretaker governments.

Clause (b) stipulates that the president’s powers should be exercised in conformity with Articles 224 and 224A of the constitution. Article 48(5)(a) concludes with the conjunction "and”, implying compliance with both (a) and (b). When read alongside Article 224, this suggests that when the president triggers the dissolution of the assembly, the authority to announce the subsequent election date should rightfully belong to the president.

Presidential authority and the ECP’s role: Despite these constitutional provisions, the ECP continues to play a pivotal role in this process. The ECP’s unilateral announcement powers, granted by Section 57, should only be invoked when assemblies dissolve through operation of law. The constitution empowers the ECP to regulate election conduct through constitutional and legal means, underscoring its role as a complementary, rather than exclusive, actor in the election date announcement process.

A flawed excuse?: The ECP’s argument hinges on the belief that this timeline aligns with the law. But does it? The Elections Act, 2017, provides ample room to expedite delimitations. The entire delimitation process can be accomplished within 54 days or even sooner. Therefore, the claim that delimitations are an insurmountable obstacle is questionable, as the Elections Act itself offers flexibility for conducting this process well within the constitutionally mandated 90-day period.

The unresolved controversy: This ongoing debate spotlights the delicate power balance within Pakistan’s political framework. It showcases the convergence of legal principles, traditions, and evolving statutes while raising a fundamental question: who should ultimately wield the authority to announce the election date. Legal experts assert that Article 48(5) of the constitution designates this authority to the president, with the ECP’s role being supplementary.

Nevertheless, the president’s position, as articulated in his letter to the chief election commissioner, has sowed seeds of ambiguity. Reports of external pressures and involvement of powerful stakeholders have further complicated the issue. This uncertainty, coupled with the president’s reluctance to adopt a definitive stance, risks further entangling Pakistani politics in judicial matters and places the incoming chief justice in a precarious position.

The stakes are high: This constitutional debate assumes profound importance because if no one steps up for elections, the handpicked caretaker setup may linger, solidifying the role of external institutional influences. 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 writer is a practising lawyer and teaches law at the Lahore University of Management Sciences (LUMS). He studied law at Columbia University, New York.