The uncalled-for dissolution of KP and Punjab assemblies orchestrated by PTI Chief Imran Khan has created a constitutional hodgepodge that has given rise to the following critical issues:
Is it necessary that the president of the country must be neutral and above party politics while in office? The constitution mandates that the president after assuming office must be above party politics, neutral and non-partisan since as the head of the state he represents all segments of the country. Consequently, the constitution requires the president not to seek any election to an assembly and upon assuming office to vacate his assembly seat if he was a member (Article 43(2)). Moreover, the President’s Oath of Office (Third Schedule) does not allow his ‘personal interest to influence his official conduct’. From unlawfully dissolving National Assembly within three minutes on the advice of his party’s prime minster upon denial of no-confidence motion, to running political errands for his party chief and doing the bidding of his party, the president has violated both the required neutrality and his oath of office. He unlawfully misused his high office to ensure and pursue his party’s narrow interests rather than country’s national interest.
Does President Alvi have the power under the constitution to announce the precise date of elections to the KP and Punjab Assemblies? No. In a written constitution, such as Pakistan’s, the powers and authority of various branches of government are specifically listed or enumerated. These enumerated powers are designed to limit the role of each institution in a system of checks and balances.
The constitution bestows upon the president just four substantive powers: the power to grant pardon or reprieve or to commute any sentence by a court (Article 45); power to summon and prorogue either house when he sees fit (54(1)); power to dissolve the NA upon the advice of PM (58(1)); and, in the event he dissolves the National Assembly, the power to appoint a date for the next general election to the National Assembly (Article 48(5)). But other than the ceremonial and symbolic authority necessary to perform his functions as the titular head of the state, the constitution gives the president no other substantive power.
Nowhere does the constitution give express or specific power to the president to announce a date for a general election to any provincial assembly. On the other hand, the constitution specifically bestows this power to a provincial governor under Article 105(3) that when he dissolves a provincial assembly… “he shall… appoint a date not later than 90 days from the dissolution, for the holding of a general election to the Assembly…”.
President’s argument that he has full authority to announce the election date in view of Section 57(1) of the Election Act and his pre-emption of governor’s above constitutional power to announce as he represents sovereign state power, do not hold water. Firstly, in a conflict between a legislative enactment and a constitutional provision the latter prevails. Constitution is paramount, being the umbrella under which acts by parliament are passed. Secondly there seems to be the absence of the president’s required “consultation” with the ECP. As far as sovereign power is concerned the president cannot add on his enumerated powers listed in the constitution via this fiat. For any institution to act beyond its enumerated constitutional powers amounts to violation, and usurpation of the constitution, which is a very serious offense.
Does the governor or the ECP have the authority to announce the election date for Punjab and KP? Yes, the provincial governors are the designated authorities by the constitution to make such an announcement, if in the case of Punjab, the governor is deemed to have dissolved the assembly. If not the governor then certainly the ECP has that authority in view of the exclusive and express power given to it under the constitution to its duty of “holding of general election” and “organizing and conducting elections…” – according to Article 218(d) and (b). The Election Commission Act of 2017 is dedicated to ECP for conducting and arranging elections, including announcement of an election programme containing timelines of the elections.
Can the time period of 90 days be extended or elections postponed? No, election must be held within 90 days of dissolution of assemblies (Article 224). But, if an ongoing election process or results are delayed, it would still be valid under Article 254. Yes, elections can only be postponed in the event of a Proclamation of Emergency under Articles 232, 233, 234.
Were the dissolutions of the two provincial assemblies improper, and if so, could they be now be overturned? These dissolutions were highly improper and constitutionally dubious since no needed legal justification or rational for their organic dismemberment existed. Key fundamental right of representation of millions of citizens was denied and a dagger was thrust in the heart of parliamentary democracy. However, it would be difficult to undo it and restore the assemblies to their pre-dissolution status as too much water has flown under the bridge ever since.
Is it necessary that the president of the country must be neutral and above party politics while in office? The constitution mandates that the president after assuming office must be above party politics, neutral and non-partisan since as the head of the state he represents all segments of the country. Consequently, the constitution requires the president not to seek any election to an assembly and upon assuming office to vacate his assembly seat if he was a member (Article 43(2)). Moreover, the President’s Oath of Office (Third Schedule) does not allow his ‘personal interest to influence his official conduct’. From unlawfully dissolving National Assembly within three minutes on the advice of his party’s prime minster upon denial of no-confidence motion, to running political errands for his party chief and doing the bidding of his party, the president has violated both the required neutrality and his oath of office. He unlawfully misused his high office to ensure and pursue his party’s narrow interests rather than country’s national interest.
Does President Alvi have the power under the constitution to announce the precise date of elections to the KP and Punjab Assemblies? No. In a written constitution, such as Pakistan’s, the powers and authority of various branches of government are specifically listed or enumerated. These enumerated powers are designed to limit the role of each institution in a system of checks and balances.
The constitution bestows upon the president just four substantive powers: the power to grant pardon or reprieve or to commute any sentence by a court (Article 45); power to summon and prorogue either house when he sees fit (54(1)); power to dissolve the NA upon the advice of PM (58(1)); and, in the event he dissolves the National Assembly, the power to appoint a date for the next general election to the National Assembly (Article 48(5)). But other than the ceremonial and symbolic authority necessary to perform his functions as the titular head of the state, the constitution gives the president no other substantive power.
Nowhere does the constitution give express or specific power to the president to announce a date for a general election to any provincial assembly. On the other hand, the constitution specifically bestows this power to a provincial governor under Article 105(3) that when he dissolves a provincial assembly… “he shall… appoint a date not later than 90 days from the dissolution, for the holding of a general election to the Assembly…”.
President’s argument that he has full authority to announce the election date in view of Section 57(1) of the Election Act and his pre-emption of governor’s above constitutional power to announce as he represents sovereign state power, do not hold water. Firstly, in a conflict between a legislative enactment and a constitutional provision the latter prevails. Constitution is paramount, being the umbrella under which acts by parliament are passed. Secondly there seems to be the absence of the president’s required “consultation” with the ECP. As far as sovereign power is concerned the president cannot add on his enumerated powers listed in the constitution via this fiat. For any institution to act beyond its enumerated constitutional powers amounts to violation, and usurpation of the constitution, which is a very serious offense.
Does the governor or the ECP have the authority to announce the election date for Punjab and KP? Yes, the provincial governors are the designated authorities by the constitution to make such an announcement, if in the case of Punjab, the governor is deemed to have dissolved the assembly. If not the governor then certainly the ECP has that authority in view of the exclusive and express power given to it under the constitution to its duty of “holding of general election” and “organizing and conducting elections…” – according to Article 218(d) and (b). The Election Commission Act of 2017 is dedicated to ECP for conducting and arranging elections, including announcement of an election programme containing timelines of the elections.
Can the time period of 90 days be extended or elections postponed? No, election must be held within 90 days of dissolution of assemblies (Article 224). But, if an ongoing election process or results are delayed, it would still be valid under Article 254. Yes, elections can only be postponed in the event of a Proclamation of Emergency under Articles 232, 233, 234.
Were the dissolutions of the two provincial assemblies improper, and if so, could they be now be overturned? These dissolutions were highly improper and constitutionally dubious since no needed legal justification or rational for their organic dismemberment existed. Key fundamental right of representation of millions of citizens was denied and a dagger was thrust in the heart of parliamentary democracy. However, it would be difficult to undo it and restore the assemblies to their pre-dissolution status as too much water has flown under the bridge ever since.