Most legal experts believe Alvi’s decision to announce the election date is according to the constitution
Lahore: President Dr Arif Alvi’s decision to announce the date for provincial assembly elections in Punjab and Khyber Pakhtunkhwa (KP) provinces has sparked a new legal debate about the presidential powers with a number of experts declaring the move as legally justified.
The president on February 20 announced April 9, 2023 as the date for holding elections in Punjab and the K-P under Section 57 (1) of the Elections Act, 2017.
According to a press release issued by the President Secretariat, Dr Alvi asked the Election Commission of Pakistan (ECP) to issue the election programme in accordance with Section 57(2) of the Elections Act 2017.
In his letter to the chief election commissioner, the president emphasized that there was no restraining order by any of the judicial fora and there had been no impediment in invoking the power and authority vested in him under Section 57 (1).
Dr Alvi stated that he felt it necessary to perform his constitutional and statutory duty to announce the date of elections to avoid the infringement and breach of the Constitution which calls for holding elections not later than 90 days after the dissolution of a legislature.
The Pakistan Tehreek-e-Insaf (PTI) party which ruled over Punjab and KP provinces dissolved the provincial legislatures last month in a bid to force the Pakistan Muslim League-Nawaz (PML-N) led federal government to hold early elections in the entire country.
The governors of the two provinces had, however, refused to announce the date of polls in the two provinces while the ECP had claimed that state institutions were not cooperating with it in holding polls.
The president noted that neither the governors of Punjab and K-P nor the ECP were fulfilling their constitutional obligation to hold polls for the Punjab and K-P assemblies within the stipulated time.
Commenting on the move, Salman Akram Raja, a top constitutional lawyer, opined that the Section 57 of the Election Act 2017 empowers the president to announce the date for general elections.
He asserted that it is a valid piece of law that has not been invalidated either by the parliament or a court of law. “As far as it exists as a law of the land it has to be acted upon,” he said.
He said the president wrote a letter to the ECP for consultation but it declined in a derogatory manner. “It is necessary to initiate some disciplinary action against the ECP. Legally, the consultation process would be deemed complete following the ECP’s refusal.”
Raja rejected the claims that Article 48 of the Constitution requires the president to follow the recommendations of the prime minister and cabinet. “There is no constitutional prohibition on the president seeking or acting upon the prime minister’s advice with regard to setting the election date.”
He said elections are held on time even when a prime minister or chief minister steps down after a no confidence vote and there is no prime minister or chief minister.
“Dispensability of the law is asserted at the highest levels by governors and the ECP. You can’t flout and mock the Constitution in full public view and then expect the people to obey traffic laws,” he said.
He said it is the 1973 Constitution which says that elections will be held 90 days after dissolution of an assembly. Elections must be held in 90 days if the governor or the president or the ECP acting under Article 218 do not set an earlier date. Article 220 obligates all state institutions to assist the ECP.
Hamid Khan, former president of the Supreme Court Bar Association, said the governor has a constitutional obligation to set the election date within 90 days.
“It does not matter if the governor dissolved the assembly or whether it happened automatically after 48 hours. Both of them are one and the same thing.
“By arguing that the governor was required to announce an election date in the event that the assembly was dissolved by his order, the government is attempting to violate the constitution.”
According to Khan, the constitution clearly states that the ECP will announce the election date if the governor fails to do so, “but both parties [the governor and the ECP) consciously chose not to discharge their constitutional obligations”.
He said the president was compelled to intervene and rightly exercised his power under Section 57 of the Election Act 2017. Khan asserted that the government was making lame excuses to delay elections.
“If the elections for two provincial assemblies are delayed, the government will also use this to justify delaying the elections for the National Assembly whose term is set to expire in October.
He said the government and the ECP are blatantly violating the constitution and an order of the Lahore High Court (LHC). He pointed out that a two-member bench of the Supreme Court has already referred the matter to the chief justice.
Sardar Latif Khan Khosa, senior lawyer and Pakistan Peoples Party (PPP) leader, concurred that Sections 57 and 58 of the Election Act of 2017 allow the president to set the election date if a governor and the ECP fail to do so.
He said that previously the PTI-appointed governor had declined to administer oath to Hamza Shehbaz when he was elected as Punjab chief minister after ouster of the PTI government in the province.
“The speaker National Assembly was later requested by the LHC to administer the oath. The LHC also requested the president to administer the oath when Parvez Elahi was chosen as Punjab chief minister because the PML-N-appointed governor had similarly refused to fulfil his constitutional obligations.”
He blasted the ECP for refusing to consult with the president, claiming that by doing so, the electoral body had insulted the head of state. “There is no question in my mind that the president broke the law. What he has done is legal and constitutional.”
He said extraordinary times call for extraordinary measures within the bounds of the law. He censured Khawaja Asif, the defence minister, for disparaging the president.
Barrister Muhammad Ahmed Pansota said in the current context one cannot describe the president’s action as being unilateral. “The courts have urged the ECP to give a date for elections. If the governor is hesitant to declare the date, Section 57 (2) of the Elections Act, 2017 permits the president to do so.
“In his letter, the president makes it plain that he took this action in response to other parties’ statements that they were unable to release the election date.
“He appears to have acted properly and in accordance with the Constitution when he exercised his jurisdiction under Section 57 (1), in my opinion. Nothing appears to be wrong with that.”
Pansota said under Article 57(1) of the Elections Act 2017, the president is empowered to announce the date of general elections after consultation with the ECP.
“The president wrote two letters to the ECPs officials, inviting them for consultations over the election dates, but the latter refused to become part of the process,” he said.
Barrister Reza Ali, however, believes that the president has the authority to announce the election date after consultation with the ECP—consultation which the president did not hold in the present case.
“This situation has arisen for the first time. Therefore, the matter may ultimately land in the Supreme Court for adjudication,” he said, adding that if the president’s order is not challenged in the court then the ECP will be under legal obligation to hold elections on April 9.
Senior lawyer Sheikh Saqib Ahmed said the president declared the election date after the governor and the ECP violated their constitutional duties, which are spelled out in Article 105(3)(a) and (b).
He said the word “shall” has been used in Article 105, which is obviously not discretionary in nature but mandatory, and that by failing to comply with the requirement, Article 6 of the Constitution—high treason—can be invoked against the governor(s) by way of interpretation.
“This is because it is comprehensible in Article 6 that anyone who abrogates, subverts, suspends, or “holds in abeyance” [..] It, however, is not a suggestion for the federal government.”
He said President Arif Alvi’s decision to announce election date is legitimate and not ultra vires under Section 57(1) of the Elections Act of 2017, as the act only defines “bye-election” under Section 2 (vi), which refers to an election to fill a casual vacancy.
“In light of this reading of Section 57(1) of the Act, the president has the authority to declare the date or dates of general elections,” he said.
Aitzaz Ahsan, a PPP leader and one of the leading lawyers of the country, is firm that no state institution could deviate from its constitutional duty to hold elections in 90 days. However, he does not agree with the view that the president can announce the election date.
“It is the foremost responsibility of the government to govern in accordance with the Constitution.
“Section 57 of the Election Act 2017 explains that the president can announce the date of general elections but this power is subject to Article 48 of the Constitution which says that in exercise of his functions the president shall act on or in accordance with the advice of cabinet or prime minister.”
He said the president lacks the authority to announce the election date unilaterally.
“Before the dispute reaches the country’s highest court, the president should write a letter to the prime minister clarifying that the electoral body has declined to have consultation for the election date.
“He is required under Article 48 to seek the prime minister’s advice because he, being the president, believes that if elections are not held within 90 days, Article 105 will be violated.
“Putting his ego aside, the president had to write that he had asked the prime minister for guidance over the possibility of delaying elections or postponing them indefinitely without announcing an election date,” Aitzaz added.
He said the government is using delay tactics because it is terrified of Imran Khan, but it should keep in mind that elections cannot be postponed at any cost as a caretaker administration would be declared illegitimate after 110 days.
“Article 254 of the Constitution cannot be used by the government as a cover because it was added to condone the acts that had occurred beyond the stipulated time,” he said.