Timely elections and people’s will

All election commissions around the world are established for the primary purpose of applying electoral laws and holding elections. The Election Commission of Pakistan (ECP) is a constitutional body required to organize and conduct general elections in the Senate, National Assembly and provincial assemblies and to do this “honestly, justly, fairly and in accordance with the law.” Should assemblies be dissolved prematurely, the constitution demands that the ECP hold elections within 90 days of the dissolution.

The latest announcement by the ECP, of holding elections in late January instead of November, takes us over the 90-day requirement by at least three months (the ECP has not announced an exact date for the elections yet) and violates the constitution. In many ways, it also contradicts the main purpose for which the ECP is established.

The ECP’s reason for the delay is the redrawing of constituencies to align with the latest consensus results, which it claims will take till at least November 30. But this is questionable for various reasons. First, the Punjab and Khyber Pakhtunkhwa assemblies’ elections were not held by the ECP in the time frame required, even though at the time all work was based on the previous official consensus results. We were, therefore, still working with the previously established constituency demarcations, yet no elections were held as required by the constitution.

Second, the constitution does not articulate any contradiction on the requirement of new demarcation of constituencies, as per census results, and the 90-day period to hold the elections. Article 222(b) requires the ECP to carry out the delimitation of constituencies and Article 222(d) requires the conducting of elections. There is no overlap, nor a caveat, which allows for delaying the stated time period for the elections because of the demarcation of constituencies. The question then is: if demarcation is not possible within the time frame in which elections are to be held, could we have held the elections based on the previous consensus to fulfil the constitutional requirement of the 90 days?

There are fundamental reasons for why our constitution, like most constitutions, does not have ‘ifs and buts’ nor negotiable clauses on election dates. Holding timely elections are the bedrock; a democracy and a clear electoral calendar allows certainty and confidence in the system. Our constitution, international human rights treaties on voting rights, the 2018 electoral laws and the ECP, all combine under the fundamental principle of the will of the people and their right to exercise the right to choose their representative in a timely and transparent manner.

This is because it is the people’s vote that gives the government its authority and goes to the heart of the argument of the right to free expression. And the people’s right to express their will through the electoral process. By this account, an interim government can never hold the legitimacy required to govern, and the longer it stays on, the more uncertain its position and hold on power will become.

The ECP, therefore, does not just have a legal obligation to hold the elections on time but it is safe to say that a moral duty to hold the general elections in November is as valid, urgent and well-founded an argument. If the constitution is supreme, then the ECP has a supreme responsibility to uphold it.

This delay will no doubt further delegitimize the independence and strengthen of the ECP and contribute towards anti-democratic precedents. Other election commissions take pride in pushing back anti-democratic forces, not capitulating at the first sign of resistance to carry out their primary function. In India, for example, the Election Commission is being recognized as an unavoidable pillar of state, along with the executive, legislature and judiciary. This is perhaps because democratic norms have become institutionalised in the Indian political and social infrastructure, due to a consistent Election Commission that holds its ground and fulfils its responsibility to the country’s constitution.

Pakistan is far from this. Delaying elections and, more importantly, deviating from constitutional requirements, means the ECP is complicit in delaying democratic and constitutional traditions from taking ground and becoming foundational. The ECP should be mindful not to be remembered as the body that allows powerful institutions to crush the democratisation process in the country. The way to start, for the ECP to follow its constitutional requirement, is simple: hold your ground by holding the elections on time.

It is unfortunate that some politicians have agreed to delay the elections. Nawaz Sharif, for example, who has suffered many political defeats because of unconstitutional actions against him and his party, is now supporting the delay. If politicians, particularly those that created democratic alliances, remain so short-sighted as to believe it will increase their chances of winning, or will help keep out political opponents, they should remember our political history shows otherwise.

There is no political party that has gained in such situations; there are no winners in the long term if one subsides the constitution. What we have learnt is that in situations when the supremacy of the constitution is not respected, like we are presently facing, undemocratic forces will always have a hold on electoral and parliamentary processes.

We would think politicians would also be able to see how political uncertainty adds to the existing economic woes of ordinary people and tunnel vision on major constitutional decisions such as holding elections, causing further suffering, dissatisfaction and security, social and economic turmoil. Do they not see it, or do they not care?

Timely elections and the will of the people are closely interlinked. That is why political parties that believe in parliamentary democracy, progressive civil society and all other democratic forces in the country must push back on the ECP’s decision to delay elections. We can no longer afford to hinder democratic foundations from taking hold.

The writer is a lawyer and consultant. She tweets @BenazirJatoi