Election Dilemma By Justice (R) Syed Manzoor Gilani Muzaffarabad AJK

The President of Pakistan’s request to the Chief Election Commissioner of Pakistan for holding general elections within 90 days and for a related meeting was subtly avoided, citing a change in law requiring the President’s consultation for an election date.

Two provisions of the Constitution of Pakistan are pertinent in this matter, regulating the period for holding general elections within 90 days when the assembly is dissolved.

The first is Article 48(5), where if the President dissolves the Assembly without the Prime Minister’s advice as envisioned by Article 48(1), the President will set a date for the election.

The second is Article 224, which addresses two eventualities:

(A) Under Article 224(1), elections for the national or provincial assembly shall be held within 60 days following the scheduled expiry of the assembly’s term.

(B) Under Article 224(2), when the National or Provincial Assembly is dissolved, a general election shall be held within 90 days after the dissolution.

Section 57 in the Election Act 2017, which stated that the President would announce election dates after consulting the commission, has been omitted.

The Constitution’s provisions clearly indicate that elections must occur within 90 days of assembly dissolution, whether under Article 48(5) or 224(2). The time frame is embedded in both articles.

Within the constitutional framework, the authority to declare general election dates lies with the election commission, responsible for ensuring a fair, transparent, and unbiased election process. The commission determines the election schedule based on legal provisions, administrative feasibility, and impartiality.

The government’s head and the President, as government nominees, are excluded from the election arena to ensure fair elections’ their credibility and legitimacy.

While Section 57’s omission aligns with the constitution’s election regulation, the fact remains that the election commission must hold elections within 90 days, despite Article 51(5) regulating seat allocation based on census results.

The assembly, as the foundation of the constitution, institutions, and laws, cannot be put on hold due to seat reallocation. Continuity of the parliamentary organ is paramount.

Amid multiple crises, especially political and economic, the country’s diplomatic image is tarnished. The need for a fresh mandate is imminent; reallocation can wait, but the country’s survival cannot.

Mandatory elections within the prescribed period are crucial for forming a new assembly and government. Deferring the process would disrupt the constitutional, parliamentary, and political systems.

Assuming both as errors if not done one after other (elections and reallocation), by not undertaking them within the stipulated period, reallocation is a lesser error than deferring elections. It’s better to err on the side of caution.

The Constitution has a provision to address such situations under Article 254:

“When any 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.”

This article doesn’t excuse inaction but allows the authorities to act subsequently, focusing first on the most urgent and indispensable actions, as in this case.