The census conducted in 2017 became controversial when many quarters including the MQM raised objections while maintaining that the Karachi census did not reflect the factual position on the ground. After 24th constitutional amendment, 2018 elections were held declaring the 6th population census as “provisional”.
After 2018 elections, the Council of Common Interests (CCI) decided under Imran Khan to hold 7th digital census in the country under pressure from the MQM, despite the fact that 6th census conducted in 2017 is declared “published”, the new digital census is underway. The ECP consequently informed the Supreme Court during the dissolution of the National Assembly by Imran Khan in April, that they will complete the delimitation in October, 2023. Keeping the above into consideration, general elections are not likely to be held under the old census of 2017.
After the dissolution of the assemblies of the PTI led provinces of the Punjab and the Khyber Pakhtunkhwa, the elections for a five-year term of both the houses are to be held within 90 days as per Clause 2 of Article 224 of the Constitution. However, this seems unlikely till the time of expiry of tenure of the National and Provincial Assemblies in August of 2023 for certain obvious reasons.
The gap of two or three days between the National and the provincial assemblies elections was removed primarily because the first phase could affect the results of the latter. After the 18th amendment, the caretaker setup to be brought in by the outgoing chief executive and the leader of the opposition has been made a part of the constitution.
Although the constitution allows any assembly to be dissolved by the Prime Minister or the Chief Minister of the concerned provincial assembly but the time of general elections in the country has always been the same since 1997. The gap of two or three days between the National and the provincial assemblies elections was removed primarily because the first phase could affect the results of the latter. After the 18th amendment, the caretaker setup to be brought in by the outgoing chief executive and the leader of the opposition has been made a part of the constitution. The very concept of the neutral caretaker setup was incorporated in the constitution to ensure the free and fair electoral process denying the rivals heading the federal and the provincial government to rig the process to get favourable outcomes.
The constitution of Pakistan under article 218 (3) clearly states: “It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.”
The dissolution has created a situation where it is theoretically possible that the elections for both houses can be conducted under the current federal government with hostile relations with the PTI that has dissolved both the houses, instead of a neutral caretaker setup at the center. Yet all this will negate the real spirit of the constitution since it will give an unfair advantage to the current federal government against the outgoing party, i,e, PTI, which might made hue and cry and resort to agitation, if it loses the election and add more instability to the system. Even if the elections for both houses are conducted, say, by April, the elections for the National Assembly and the provincial assemblies of Sindh and Balochistan will be due after almost three months as their term expires in August.
The elections for the remainder of the houses are likely to take place in October. When the National Assembly elections are held in October, both the Punjab and the Khyber Pakhtunkhwa will have duly elected governments instead of the neutral caretaker governments. This creates another problem. If the parties of the current coalition at the centre win the provincial elections of the Punjab and or Khyber Pakhtunkhwa, they are most likely to use the provincial set-ups with the might of the police and the district management in their favour to win the National Assembly seats in the Punjab and the Khyber Pakhtunkhwa.
If the PTI wins the provincial assembly elections in the Punjab and the Khyber Pakhtunkhwa, they get duly elected provincial governments for good five years. That means when the elections for the National Assembly are held in October, both the provincial governments of the Punjab get an advantage and can massively rig the elections with the help of the provincial administration. That is against the very spirit of the constitution that introduced the neutral caretaker setup at all places to ensure free and fair elections.
With 79% total voters residing in both provinces, Punjab 58% and Khyber Pakhtunkhwa 21% of the total 122.2 million voters, the provincial governments elected barely five months before the election of the National Assembly, gives undue advantage to both provincial governments and upsets the entire scheme of the free and fair elections guaranteed under the constitution and makes the mission of the Election Commission impossible to hold free and fair elections in terms of Article 218(3) since newly elected governments will have an unfair advantage against the federating units of Sindh and Balochistan.
Imran Khan has dissolved these assemblies, not because there was any constitutional crisis in both assemblies. In Khyber Pakhtunkhwa, the PTI almost enjoyed 2/3 majority. The sole purpose of depriving the electorate of both the provinces was aimed at pressurizing the federal government to hold early polls. Imran Khan has failed to get early polls through this dissolution but has created not only a constitutional crisis but endangered the fairness of the election of the next National Assembly. The actions of Imran Khan have also made the post 18th amendment that created neutral caretaker setups to ensure free and fair elections, extremely vulnerable.
It is clear that the upcoming provincial assembly elections will be neither free nor fair if held in April because there will be no caretaker setup at the centre. The governments emerging out of these elections will most likely try to rig the upcoming National Assembly elections and keeping the above into consideration, the temporary measure to address this crisis is to allow the Punjab and KP caretaker governments to continue till October.
It is very much in consonance with the spirit of the constitution that when the tenure of the National Assembly and the provincial assemblies of Sindh and Balochistan expires in August and the caretaker governments like Punjab, KP are created there as well, we allow the elections of all assemblies to be held on the same day as they have been held since 1997.
It is very much in consonance with the spirit of the constitution that when the tenure of the National Assembly and the provincial assemblies of Sindh and Balochistan expires in August and the caretaker governments like Punjab, KP are created there as well, we allow the elections of all assemblies to be held on the same day as they have been held since 1997.
The Election Commission must create a one-time exception for this anomaly and let the Punjab and KP caretaker governments to ensure free and fair elections and protect the federation at a time of great economic and political instability gone worse due to the rising terrorism specially in Khyber Pakhtunkhwa, Balochistan and the rest of the country. The only constitutional body responsible for holding the free and fair elections is the Election Commission of Pakistan, empowered under article 218 of the constitution, hence the higher judiciary must support rather than create any hindrance to the constitutional body to avoid any more crises in the country.
After the general elections are held, a constitutional amendment is very much needed to plug the hole of this constitutional conundrum. In any case, the course suggested by the author will be in consonance with the spirit of the constitution till the anomalies pointed out above are resolved once for all by making suitable amendments in the constitution.
The article was previously published on Stratheia.