Daily Times

The Constitution of Pakistan, 1973 has described the role of Election Commission of Pakistan (ECP) in addition to Election Act 2017 under different Articles such as 51, 59, 62, 63, 63A, 113, 213, 214, 215, 216, 217, 218, 219, 220, 223, 224, 225 and 226 of the Constitution of Pakistan. The duties of (ECP) has been elaborated in Article 219 of the Constitution which states that for preparing electoral rolls for election to the National Assembly, Provincial Assemblies and local governments, and revising such rolls periodically to keep them up-to-date, organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly, appointing Election Tribunals, holding of general elections to the National Assembly, Provincial Assemblies and the local governments and such other functions as may be specified by an Act of Parliament, which is Election Act 2017.

Section 17 of Election Act 2017 further states the ECP functions that Commission shall delimit territorial constituencies for elections to the National Assembly, each Provincial Assembly and to the local governments in accordance with the provisions of the Constitution, this Act, the Rules and the applicable local government law, and for that purpose the Commission shall delimit constituencies after every census officially published. Further, in view of the recent amendment in the Section 57(1) of Election Act 2017, now the process of consultation of Election Commission with the President has been waived, and it is now the prerogative of the Election Commission to announce the date or dates for the general elections by a notification in the official gazette and would call upon the constituencies to elect their representatives, and as per section 58 that notwithstanding anything contained in section 57, the ECP can 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 as may, in its opinion to be recorded in writing, be necessary for the purposes of Election Act 2017.

Though, the provision of Article 224 of the Constitution relating to the holding of election prescribes either 60 days or 90 days but this provision is not independent, isolated but completely subject to the completion of process of limitation of constituencies as provided in provision of Article 51(5) of the Constitution, which is priory written in the Constitution before Article 224 of the framers of the Constitution that the seats in the National Assembly shall be allocated to each province and the Federal Capital on the basis of population in accordance with the last preceding census officially published, and that decision has been made by the previous government through Council of Common Interest (CCI) represented by all Chief Ministers under the chair of Prime Minister through Consequent upon the passage of Eighteenth Constitutional Amendment in April 2010, the important subjects relating to the Federation have been placed in the Federal Legislative List (Part-II) for the consideration of and decision by the Council of Common Interests, and Census subject is among them. So as in view of the above clear Constitutional provisions that until the process initiated Article 51(5) of the Constitution is not completed which ought to be done in 120 days, the provision for triggering the election schedule under Article 224 of the Constitution would not come into place, because the provision of Article 224 of the Constitution is completely dependent upon the completion of the limitation process for constituencies under Article 51 (5) of the Constitution.

The other Article which is now very much relevant to the present situation is 153 of the Constitution, which states that the members of Council of Common Interests are appointed by the President, and the Council consists of the Prime Minister, who shall be the Chairman, and the Chief Ministers of the provinces and three members of the Cabinet would be its members. There is no distinction has been prescribed or there is any prohibition in Article 153 of the Constitution that Caretaker Prime Minister or Chief Minister cannot become part of the proceedings of the Council of Common Interests, thus every decision made by the members of Council of Common Interests could not be challenged on the ground that the decision should not have been made by the elected Chief Ministers or Prime Minister, and that Council recently decided by that the Census results be notified under Article 51(5) of the Constitution. Therefore, it is very difficult Constitutionally to make the arguments for holding the election after dissolution within 90 days assemblies for the purposes of general election, and in that situation and if the matter reaches in Superior Court, it would be very difficult Constitutionally to cross the bridge of maintainability of public interest litigation under Article 184 of the Constitution in view of the clear provisions of Articles 51(5), 153 read with Article 224 of the Constitution and of section 17 of Election Act 2017. Further, there are precedents that the Superior Courts generally not looking into the legal area while hearing such cases where there is clearly mentioned of some provision of the mandatory requirement of the Constitution before taking further process in different or another Article of the Constitution, which in the present case the seats in the National Assembly shall be allocated to each province and the Federal Capital on the basis of population in accordance with the last preceding census officially published as per Article 51(5) of the Constitution before holding the next general election.

Thus the ECP cannot be Constitutionally or legally compelled under the present extraordinary Constitutional circumstances to announce the schedule for holding the general election within 90 days without fulfilling the mandatory requirement imposed upon them under Article 51(5) of the Constitution read with section 17 of the Election Act 2017, which these provisions are Constitutionally and legally binding in nature upon the ECP, as the new Census has been notified by the federal government after the unanimous decision of the Council of Common Interests prior to the dissolution of National Assembly and of two other Assemblies, and moreover the schedule of limitation or delimitation has been issued in pursuance thereof by the ECP under Article 51(5) of the Constitution read with section 17 of the Election Act 2017 and the for its completion within 120 days has been notified. However, in such situation, if the subject matter reaches in Superior Court through filling a case, there would be very difficult to legally hold for the Court that the provisions of Article 51(5) of the Constitution can be bypassed or the Article 224 be given as precedence or overriding effect upon the mandatory provisions of Article 51(5) of the Constitution read with section 17 of the Election Act 2017. However the only direction or advise can be given by the Superior Court to the ECP to at earliest complete the process of limitation of constituencies as per Article 51(5) of the Constitution and then to announce or amend the schedule the election as per Article 224 of the Constitution read with the provisions of sections 57 and 58 of the Election Act 2017.