Under the 1973 Constitution, the National Assembly and Provincial assemblies are elected for a five-year term, unless sooner dissolved. In normal constitutional situations, there are two ways for announcing the election schedule. Under Article 224 of the Constitution, a general election to the National Assembly or a provincial assembly shall be held within a period of 60 days immediately following the day on which the term of the assembly is due to expire, unless the assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day. On dissolution of the assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the president, or the governor, as the case may be, shall appoint a caretaker cabinet under 224 A of the constitution.
There is another Section as 57 in Election Act, 2017, that the president shall announce the date or dates of the general elections after consultation with the commission, and within seven days of the announcement under sub-section (1), the Election Commission shall by a notification in the official Gazette and by publication on its website, call upon the voters of the notified assembly constituencies to elect their representatives in accordance with an election programme.
According to Section 58 of the Election Act 2017, the Commission may, at any time after the issue of the notification under sub-section (1) of that section, make such alterations in the Election programme announced in that notification for the different stages of the election or may issue a fresh election programme with the prior approval of president as may, in its opinion to be recorded in writing, be necessary for the purposes of this Act.
The president has powers to announce schedule under Section 57 of Election Act, 2017, with consultation of Election Commission but this power could be exercised only if the general elections are going to take place. While in the present situation, the National Assembly and two provincial assemblies are intact and therefore, it cannot be called as general election. Thus the letter addressed by the President to Election Commission under sections 57 and 58 would not have binding effect.
The president though has power to announce the schedule under Section 57 of the Election Act, 2017 with consultation of Election Commission but this power could be exercised only if the general elections are going to take place, which in the present situation, the National Assembly and two provincial assemblies are intact and therefore, it could not be said as general election, thus the letter addressed by the President to Election Commission under sections 57 and 58 would not have binding effect.
Article 105 of the constitution in the present situation is very much relevant which states that if a provincial assembly is dissolved before its legal term, the governor will announce the date for fresh election. There is no doubt in the relevant constitutional provisions that in case the assembly completes its natural term, election would take place in 60 days, and in case the assembly is dissolved before its legal term, the elections would be held in 90 days. The caretaker government simultaneously on the other side cannot go beyond the period of 90 days and is also responsible to provide support to Election Commission for free, fair and transparent election in respective two provinces, Punjab and KPK. Any delay in holding the election beyond 90 days would be a clear violation of the Constitution and would set a bad precedent for the future.
Though in the first round the matter for holding the election in Punjab has been decided by the Lahore High Court, and still the matter is intact, and both sides have further appeals and petitions including in Supreme Court, therefore, now the whole constitutional controversy would be finally settled by the Supreme Court being the final arbitrator for interpretation of the Constitution.
The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com