he Elections (Amendment) Act, 2023, brings three important changes to the Election Act, 2017. The first two changes centre around strengtheningthe role of the Election Commission of Pakistan.

Firstly, Section 57(1) of the 2017 law has been amended to state that the ECP shall, subject to the constitution “by notification in the official gazette announce the date or dates, as the case may be, of the general elections.” Previously, this section gave the president the power to announce the date after consultation with the ECP. Essentially, this amendment transfers the power to announce the election date from the president to the ECP.

Item 41 of the Federal Legislative List includes, “Elections…to the National Assembly…and the Provincial Assemblies.” In a suo motucase (2023), the Supreme Court of Pakistan had held that the parliament was competent to identify by law the authority that should appoint the date for elections under Section 57. It is crucial that the authority so designated by law must act in accordance with the time frame stipulated in the constitution.

After the Punjab Assembly was dissolved on January 14, the ECP did not make itself available for consultation with the president.

Secondly, Section 58(1) of the 2017 Act has been amended to state that the ECP may “make such alterations in the election programme announced in that notification for different stages of the elections or may issue a fresh election programme with fresh poll date or dates.” The amendment gives the ECP the authority to issue an election programme with a “fresh poll date or dates.” The ECP’s ability to notify a fresh poll date was not expressly mentioned under the previous section.

Earlier this year, an attempt was made by the ECP to issue a new poll date. When the provincial assemblies of the Punjab and Khyber Pakhtunkhwa were dissolved, the ECP issued an election schedule notifying an April 30 poll date. Later, the ECP unilaterally withdrew the schedule and issued an order stating that, “a fresh schedule will be issued in due course of time with a poll date of October 8, 2023.” This was six months beyond the constitutionally stipulated timeline. The apex court then struck down the ECP order. “Neither the constitution nor the law empowers the ECP to extend the date of elections beyond the 90-day period,”the courtobserved.

The ECP may issue a fresh poll date as suggested in the amendment to Section 58, provided that it is in line with the constitution. Any other interpretation would be tantamount to giving the ECP the authority to indefinitely delay elections.

The new amendment gives the ECP the authority to issue an election programme with a ‘fresh poll date or dates.’ The ECP’s ability to notify a ‘fresh poll date’ was not expressly mentioned under the previous section.

Thirdly, Section 232(2) of the 2017 Act has been amended to state that notwithstanding anything contained in any other law or any judgment of the Supreme Court or a High Court, “the disqualification of a person…under Paragraph (f) of Clause (1) of Article 62 of the constitution shall be for a period not exceeding five years from the declaration by the court of law.”

Article 62(1)(f) states that a parliamentarian shall not be qualified to be elected as a member of parliament unless, “he is sagacious, righteous, non-profligate, honest and ameen.”The constitution does not specify a time period for disqualification under this article. In the Samiullah Baloch case, the court held that a disqualification under Article 62(1)(f) shall be for life.

“A candidate for election who has committed misconduct falling within the terms of Article 62(1)(f)…has on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office,” the court ruled. It was held that the candidate, “must suffer the burden of that finding of incapacity for as long as the court decree remains in force.”

The judgment had far-reaching consequences. By way of example, under Article 63(1)(h) of the constitution, a parliamentarian with a criminal conviction for an offence involving moral turpitude (carrying a sentence of at least two years) is subject to disqualification for five years after release.However, a parliamentarian who was not ‘honest and ameen’ would be disqualified for life.

There is some disagreement on whether a time limit can be imposed under Article 62(1)(f) through simple legislation or whether this requires a constitutional amendment. On the one hand, it is said that since the apex court has interpreted the constitution, this can only be undone through a constitutional amendment. On the other hand, it is said that since the constitution is silent, the silence can be addressed through a law.

The writer is a barrister. Twitter: @RidaHosain