Article 51 of the Constitution read with Section 7 of the Delimitation of Constituencies Act, 1974 (Delimitation Act) caps the total number of seats to 342 in the National Assembly. Except for 10 fixed seats for minorities, the allocation of total seats to each Province, FATA and the Federal Capital including general and women seats has been set on the basis of population in accordance with the last preceding census which was officially published in 1998.
This means that fresh delimitation of constituencies under the Delimitation Act cannot take place until two mandatory constitutional prerequisites enshrined in Article 51 of the Constitution are fulfilled, namely, (1) the result of the fresh census held in 2017 is officially published; and (2) Article 51 is amended regarding fresh allocation of seats between the provinces, FATA and the Federal Capital on the basis of the 2017 census population either through a constitutional amendment under Article 239of the Constitution or by a simple law as mandated by Article 222 of the Constitution.
The Chief Census Commissioner has announced that the census’s provisional results will be available by end July 2017 and officially published results by April 2018. Hence, the Election Commission of Pakistan (ECP) has announced that fresh delimitation before the next general elections scheduled for 2018 is nearly impossible and plans to conduct the elections on the previous census’s delimitation
If the aforesaid issue is not resolved by the Government, Parliament and political parties, it can lead to a new constitutional crisis leading to litigation and having the potential to delay the scheduled polls of 2018.
The 2018 general elections will be unconstitutional and in violation of the Constitution’s Article 51 if delimitation and allocation of seats occurs on the basis of the 1998 population census
This is on account of the fact that that term of the present National Assembly expires on 1st June 2018 and officially published results of Census 2017 will be available April 2018. Article 52 of the Constitution fixes the term of the National Assembly to five years and stipulates that the Assembly will stand dissolved at the expiration of its term.
Hence, the 2018 general elections will be unconstitutional and in violation of the Constitution’s Article 51 if delimitation and allocation of seats occurs on basis of 1998 census.
On the other hand, if Elections are to take place on the basis of delimitation and allocation of seats in light of the 2017 population census, they cannot take place in 2018 even if Article 51 regarding reallocation of seats is expeditiously undertaken by Parliament.
In such a scenario, the Supreme Court of Pakistan will again be requested to find a solution to the constitutional impasse through interpretation of Article 254 which states that “when an act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”
The second dichotomy is that the last delimitation undertaken by the ECP on the basis of the final results of the 1998 census has become outdated and violates the principles of delimitation set out in Section 9 of the Delimitation Act.
This is on account of the fact that several new districts have been carved out in various parts of the country altering the boundaries of administrative units or of districts.
Consequently, several constituencies are overlapping into two districts not only causing immense public inconvenience but such existing constituencies now exist in utter disregard of the principles of delimitation susceptible to successful legal challenge.
Section 3 of the Delimitation Act imposes a mandatory duty upon the ECP to delimit territorial constituencies for elections to the National Assembly and to each Provincial Assembly in accordance with the provisions of the Constitution and of the Delimitation Act.
Section 9 sets out the cardinal principles of delimitation as(1) distribution of population in geographically compact areas; (2) existing boundaries of administrative units; (3) facilities of communication; (4) public convenience; and (5) other cognate factors to ensure homogeneity in the creation of constituencies.
The only exception where an administrative boundary of a district can be violated is where the size of a constituency is greater than the size of the administrative unit in which case several administrative units can be grouped together to form one constituency.
Section 10-A of the Delimitation Act grants broad and wide discretion to the ECP to make amendments, alterations or modifications in the final list of constituencies as it thinks fit.
Hence, the ECP needs to realise its constitutional and legal mandate to either undertake fresh delimitation on the basis of 2017 census or immediately amend the existing constituencies on the basis of final results of the 1998 census to bring them in line with the cardinal principles of delimitation at least in the districts constituted after the last delimitation.
There is no legal impediment before the ECP in this regard. If the Government has any vested interest in not responding to these constitutional and legal hurdles, the political parties must seize this challenge before the crisis erupts.
The writer is a graduate of Columbia Law School, former member of the Punjab Assembly and an Advocate, Supreme Court of Pakistan. Comments can be sent to [email protected]
Published in Daily Times, July 28th , 2017.