Analysis: Experts differ on whether ‘incomplete’ Senate can elect chairman

KARACHI: Without the Khyber Pakhtunkhwa Senate elections, the upper house cannot elect a chairman or deputy chairman. This is one view on the matter with the other view arguing that after the Senate polls in three out of four provinces, the Senate is duly constituted and the election of the chairman and deputy chairman has to take place in the upper house’s first meeting after its new members take oath.

On Tuesday, Punjab, Sindh and Balochistan held Senate elections on 19 Senate seats while polls were postponed in Khyber Pakhtunkhwa over the controversy regarding the swearing-in of opposition members elected to reserved seats.

The ECP had announced the KP poll postponement, saying that the Senate election in KP would not be held until the oath was administered to the elected members against the reserved seats.

In a comment to Geo News on Tuesday, former ECP secretary Kanwar Dilshad had said that the ECP had postponed the Senate elections in KP under Articles 17 and 218 (3) of the constitution and Sections 4 and 8 of the Election Act, 2017.

More importantly, Dilshad says that “the Senate chairman and deputy chairman cannot be elected until the KP Assembly conducts elections”. He adds that this does not mean that the Senate cannot function: “The Senate will remain functional and can legislate as well,” says Dilshad, adding that the chairman can also elect a presiding officer as the Senate chairman in his place. But, per Dilshad, the chairman cannot be elected till the KP issue is resolved. This is so because “the [upper house] is not complete”.

A few days earlier too, Dilshad had told Jang that if the KP Assembly speaker did not administer the oath to women on reserved seats and the ECP postponed the Senate election schedule there, there would be no election for chairman and deputy chairman of the Upper House: “If the schedule of the Senate election in KP is postponed, the electoral college will become incomplete”. According to Dilshad, this would create a constitutional crisis.

Advocate of the Supreme Court, Hafiz Ahsaan Ahmad Khokhar, agrees: “There will not be a single chance that the election of chairman and deputy chairman senate will be held without newly elected members.”

Khokhar explains that since there will be a few days from the date of notification of other provinces’ senators and the holding of the election for the chairman or deputy chairman of the Senate, “the present stalemate and uncalled-for legal controversy for not calling the KP Assembly session will be resolved by the Peshawar High Court”. He adds that after the oath is administered, the new members of the KP Assembly will participate [in the Senate election] which the ECP will hold then, and “all newly elected senators of KP will participate in the chairman or deputy chairman of Senate elections.”

PILDAT President Ahmed Bilal Mehboob has a somewhat different take on this issue. He tells The News that per Article 60 of the constitution, the election of the chairman and deputy chairman of the Senate is to be held after the Senate is duly constituted. “The question here is whether the Senate without new representation of one federating unit can be called duly constituted. If yes, then it can elect its chair and deputy chair and transact the rest of the business as well. If it is not duly constituted, it can do none of these things.”

What does Mehboob think? He feels that the Senate “after the election in three provinces is duly constituted and election of the chair and deputy chair has to be held in the first meeting after taking oath.” Mehboob adds that he is also “not sure how the Senate election in the KP Assembly can be postponed when Section 130 of the Elections Act, 2017 states that vacancies in any assembly can not invalidate the Senate election. Since half of KP’s provincial representation is continuing in the Senate, it is not that KP is completely without representation in the Senate.”