President vs Election Commission. The country is the victim

In the aftermath of the president’s tweet regarding the Army Amendment Act 2023 and the Official Secrets Amendment Act 2023, there was a profound upheaval in the nation’s legal and political realms, sparking extensive discussions, debates, and passionate reactions. Some individuals praised the president as a heroic figure for speaking out against the suspected tampering of the controversial bills, recognizing the broad implications these actions held for the current and future well-being of the Pakistani populace. On the other hand, there were those who criticized the president’s leadership abilities, characterizing him as ineffective and lacking the necessary administrative prowess to effectively manage his team of subordinates. This group called for his immediate resignation.

Hardly a day after, the President created another huge tide in the fragile political and legal environment of the country when he wrote a letter to the election commission directing him to appear in the president house and discuss with him the date for holding the next general election within 90 days.

The tone of the president’s letter conveyed a sense of disregard for the amendment made in section 57 of the Election Amendment Act 2023, which had vested the authority to set election dates in the election commission.

The president was within his right to term the Election Act amendment as potentially violating the constitution, arguing that alterations to the subordinate legislation of the Election Law cannot supersede the explicit constitutional provisions. Conversely, there are those who firmly assert the legality and appropriateness of the amendment.

With such opposing viewpoints, it seems inevitable that we are heading towards a significant legal confrontation. On one side stands the president, and on the other, the current government and the election commission. Typically, the president is known for his flexibility, not taking rigid positions on trivial matters, and avoiding unnecessary un refluffing the feathers. Possessing wisdom and a profound grasp of complex issues, he is skilled at facilitating resolutions agreeable to all stakeholders. But on matters which he thinks are important he is also known to take a stand until either he is convinced and he convinces the others.

Yesterday, I watched a talk show where former Secretary of the Election Commission of Pakistan (ECP), Mr. Kanwar Dilshad criticized the President’s letter. He argued that the ECP wouldn’t follow the President’s order, wouldn’t meet with the President to discuss election dates stating that the Election Act amendment in 2023 removed this power from the President.

Two other well-known constitutional lawyers strongly disagreed with him. They argued that no subordinate legislation could alter the constitution, and any amendments conflicting with constitutional provisions would be invalid and  revealed that a constitutional petition had already been filed in Pakistan’s Supreme Court to overturn this law.

As anticipated, Mr. Kanwar Dilshad’s statements were proven correct. The ECP wrote a letter to the President today (24.08.2023), declining to attend the meeting saying that under section 57 of the Election Amendment act, the authority to announce election date rests with the Election Commission.

Now, before delving into the President’s remaining options to enforce his directive to the ECP, let’s pause and consider another scenario involving PTI lawyers, particularly Barrister Zafar. In a recent interaction with the Election Commission, Barrister Zafar presented extensive arguments that warrant discussion.

During a hearing before the ECP, Barrister Zafar presented compelling arguments regarding the delimitation process based on the latest census. He stated that the ECP lacked the authority to conduct delimitation for two significant reasons. Firstly, any alteration in the allocation of seats to national and provinces assemblies would necessitate an amendment to Section 51 of the constitution. However, this amendment couldn’t take place since the parliament was not in session. Secondly, Barrister Zafar contended that the decision to hold elections based on the new census, as made by the Council of Common Interest (CCI), held no legal standing. He deemed the CCI’s constitution unconstitutional, as two caretaker chief ministers, not elected by the people of KP or Punjab, were part of it. Consequently, their decision regarding the census lacked legitimacy.

According to Barrister Zafar, election laws demanded that PTI should be granted a level playing field to conduct its campaign activities just like other political parties. The Election Commission patiently listened to these submissions, informed that they were engaging with party leaders to gather input for setting election dates, and stated that no decision had been reached yet, keeping their options open.

Let us analyze Barrister’s arguments in the light of provisions of the constitution related to seats and the census. Article 51(1) stipulates, “There shall be [three hundred and thirty-six] seats for members in the National Assembly, including seats reserved for women and non-Muslims.” Article 51(3) states, “The seats in the National Assembly referred to in clause (1), except as provided in clause (4), shall be allocated to each Province and the Federal Capital as under.”

Section 51(5) specifies that the allocation of seats in the National Assembly is determined by the population based on the last preceding census officially published.

Upon careful examination of these articles, it’s evident that altering the number of seats in the provinces or the federation requires an amendment to Article 51(1) and 51(3) of the constitution. However, due to the dissolution of the national assembly, such an amendment isn’t possible. This casts doubt on the legitimacy of the previous government’s hasty approval of the census through the CCI.

Mr. Zafar’s second objection pertains to the formation of the Council of Common Interests (CCI), as governed by Article 153 of the Constitution of Pakistan, 1973. The article states, “there shall be a Council of Common Interests, to be appointed by the President. The Council shall consist of:”

• The Prime Minister of Pakistan, who shall be the Chairman of the Council;
• The Chief Ministers of all the Provinces;
• The Governor of Gilgit-Baltistan;
• The President of Azad Jammu and Kashmir; and
• Three members from the Federal Government to be nominated by the Prime Minister from time to time.”

The Constitution explicitly outlines the membership of the Council of Common Interests (CCI), and the absence of the term “caretaker Chief Minister” in these provisions suggests that decisions made by the CCI with such members may lack validity and legal consequences.

Having addressed critical factors related to holding elections within the prescribed timeline, let’s continue with argument with regards to options available with the President to enforce compliance of his letter issued to the Election Commission.

To enforce the implementation of Articles 48(1) and (2), read in conjunction with Article 224(1) and (2), the President is  empowered to announce the date of the elections.

Article 48(1) mandates that the President must act in accordance with the advice of the Cabinet or the Prime Minister when exercising their functions. Article 48(5) outlines that if the President dissolves the National Assembly, he must appoint a date for a general election to the Assembly within ninety days from the date of dissolution.

Article 224 outlines the timelines for holding general elections. Article 224(1) stipulates that a general election to the National Assembly or a Provincial Assembly must occur within sixty days following the expiration of the Assembly’s term, unless it was dissolved earlier. Article 224(2) states that when the National Assembly or a Provincial Assembly is dissolved, a general election must be held within a ninety-day period after the dissolution, and the election results should be declared within fourteen days after the polls conclude.

Since the assemblies were dissolved two days before the completion of their regular tenure based on the Prime Minister’s advice, the provisions of Article 48(1), (2), and Article 224(2) are applicable. In all of these provisions, the authority to announce election dates rests with the President. Without amending Articles 48(1), (2), and Article 224(2), it’s not conceivable for this authority to be transferred to the Election Commission.

In democracies, when laws are passed that are against constitutional provisions, there are a few general principles that are often followed to address the situation:

Courts play a crucial role in interpreting the constitution and determining the constitutionality of laws. They can declare laws that violate the constitution as null and void. For example, in the United States, the Supreme Court case of Marbury v. Madison (1803) established the principle of judicial review.

The judiciary can strike down any law which is against the basic constitutional structure. For example the Indian Supreme Court has used this principle to strike down laws that violate the basic structure of the Constitution.

If a law contradicts the constitution, the legislative body might work to amend the constitution to bring it in line with the new law which is not possible in this case.

When laws violate constitutional principles, public outcry and activism can play a significant role in pressuring the government to reconsider or amend such laws. This might involve protests, petitions, or civil society initiatives

In the current context, options 1 and 2 appear to be more applicable. According to Article 186 of the Constitution of Pakistan, the President has the authority to refer questions of law to the Supreme Court. This article specifies that the President can seek the Supreme Court’s opinion on matters of public importance.

My interpretation is that the President may have intentionally engaged with the Election Commission by sending a letter, requesting a meeting to discuss the upcoming general election date. This action could have been anticipated to prompt the Election Commission’s response, asserting that under section 57 of the Election Amendment Act 2023, they possess the authority to determine election dates, not the President.

This sequence of events could provide the President with a basis to first refer the matter to the government, with the expectation that the government would support the Election Commission’s stance. Subsequently, the President could refer the question to the Supreme Court, asking for their opinion on whether the power to announce election dates lies with the President, in line with articles 48(1) and (2), along with article 224(1) and (2), or if it’s vested in the Election Commission as per section 57 of the Election Amendment Act 2023.

It is most likely that if the supreme court takes up the matter it would be decided in favor of the constitution.

It’s unfortunate that even after more than 75 years of existence and collective wisdom, our nation struggles to address basic issues that other countries have resolved. Instead of moving forward to create wealth, progress, and prosperity, we often revisit problems due to vested interests, neglecting broader national goals. While other countries make remarkable discoveries, we seem to repeatedly reinvent the wheel and hinder growth. The ongoing disputes will likely exacerbate our persistent confusion, controversies, and conflicts, breeding more uncertainty and internal unrest.

The upcoming legal battles are likely to amplify our well-known and persistent confusion, controversies, and conflicts. These issues have proven stubborn and resistant to resolution. As a consequence, the increased uncertainty could foster even more chaos and unrest within our nation.

It is  important for institutions and individuals to prioritize the greater good and work towards resolving disputes with transparency and a commitment to upholding democratic values. This allows for a more stable and harmonious environment that benefits the entire nation.

(The author is the former Press Secretary of the President of Pakistan, the former Press Minister of the Embassy of Pakistan in France and also has been the former MD / CEO Shalimar Recording and Broadcasting Company (SRBC))