In yet another controversial move, President Alvi, through a press release issued by the President’s Secretariat Press Wing, stated that Governors of both Punjab and KP were not performing their constitutional duties for ascertaining a polling date, not later than ninety days from the date of dissolution of provincial assemblies, as per the constitution of Pakistan.
President Alvi also claimed that the Election Commission of Pakistan (ECP) was also derelict of its constitutional responsibility of holding elections.
On Monday, the President unilaterally announced April 9 as the date for holding general elections for the Punjab and Khyber Pakhtunkhwa assemblies, according to a press release issued by the President’s Secretariat Press Wing.
‘No constitutional authority to announce unilateral elections of Punjab, KP’
Speaking to The Friday Times (TFT), constitutional expert and former attorney general of Pakistan, Ashtar Ausaf said that the matter is very simple: whatever powers the President has are clearly mentioned in the constitution of Pakistan. “Whatever decisions and orders he gives while sitting at the constitutional position are under the command of the cabinet and the prime minister.”
Ausaf said that when there is such a situation, the President cannot issue any such order without the advice of the cabinet or the prime minister.
“Read all the sections and clauses of the constitution of Pakistan except where the President has the authority to dissolve the National Assembly only there is a provision that he could give the date of the elections of the National Assembly,” he stipulated.
For Ausaf, even the date given by him for the National Assembly elections is not final. “Even that date is not final because it is the constitutional responsibility of the ECP,” he said.
Ausaf was of the opinion that the responsibility of the ECP is clearly mentioned in the constitution as well as law.
“The Constitution clearly states that it is the responsibility of the ECP to hold elections and no court can interfere in that and it is the order of the constitution. Remember that all the judges take the oath to uphold the constitution,” Ausaf said.
The constitutional expert further said that while upholding the constitution judges cannot encroach the powers given to ECP and other institutions for holding elections.
Secondly, Ausaf said, "that it is the power of the Election Commission of Pakistan to give the schedule of the elections, given whatever date they want and they could change it as well and all the government departments and state institutions fall under the command of ECP for holding elections".
“That’s why even the transfer and postings are also done after consulting them,” Ausaf recalled.
It is about time that we speak about the charter of democracy, charter of tolerance, charter of economic revival and charter of good governance and even the people living outside Pakistan realize that we may have political differences but no national differences. “It is about time that we join hands and move towards political stability and not turmoil,” Ausaf added.
In his learned opinion, President Alvi’s announcement of unilateral elections of Punjab and KP assemblies is absolutely unconstitutional. “The Constitution doesn’t allow him to announce the dates of provincial assemblies. He could announce the dates of National Assembly elections,” Ausaf concluded.
Agreeing with Ausaf, another leading jurist and constitutional expert, who is serving as Special Assistant to Prime Minister on Legal Reform, Irfan Qadir told TFT that it is a question of common sense first and foremost.
“If we are inviting guests at home, we would ethically ask our family members if we should invite the guests on certain date, and if they give genuine reason against it, then we would definitely have to listen to them and postpone it till a better time,” Qadir pointed out. He explained that etiquette teaches us we cannot force our family members to entertain our guests with us, just because they live with us.
Coming to President Alvi’s announcement, Qadir elaborated that the Constitution doesn’t give the head of state any power to announce the dates on his own, without giving due deference to the ECP and its regulations.
“It is the ECP which has the constitutional powers to announce the date of the elections and arrange them. The President has no constitutional powers to announce the dates of KP and Punjab elections,” Qadir concluded.
Constitutional expert Ali Ibrahim, who is a founding partner at Kilam Law, told TFT the announcement of the dates for the elections to the provincial governments in KP and Punjab by the President was yet another case where legislators, parliamentarians and elected representatives have shirked from exercising the powers meant for their sole and exclusive jurisdiction.
For Ibrahim, this has thrown the proverbial ball in the court of other institutions, as it always does, to exercise powers which were never meant for them to exercise, hence the conundrum.
“One thing is for certain; in our legal framework, any law which seeks to legislate matters which have been specifically regulated by the Constitution can only do so within the contours provided by the constitution,” Ibrahim said.
He was of the opinion that if Section 57 of the Elections Act 2017 – the law under which the President has ostensibly exercised power for giving a date of elections – is in conflict with Article 105(3) of the Constitution – which lays down the constitutional requirement that elections to the provincial assemblies ought to be held, in all circumstances, within 90 days of the date of dissolution – then the constitutional prescription is to be enforced since it has obvious precedence.
To get a better understanding of the situation, Ibrahim pointed out that one has to necessarily refer to the genesis of this 'conundrum'
“In terms of Article 112(1) of our Constitution, the Governor must dissolve the provincial assembly when so advised by a Chief Minister against whom no vote of no confidence is pending in the legislative chamber,” he noted.
Ibrahim believes that to drive home this constitutional imperative, the constitution itself lays down that if the Governor fails to dissolve the assemblies on the advice of the Chief Minister, the assemblies will automatically be dissolved on the expiry of 48 hours.
He recalled that the Governor, in a bid to delay elections, has insisted on the interpretation that since he was not the one to dissolve the assemblies, he is not bound to give any date for the elections in terms of Article 105(3). This interpretation is ridiculous at best and treasonous at worst. "If indeed the governor is required to follow the constitutional command of announcing a date for elections only when he himself dissolves the assemblies, he should not have appointed a caretaker setup either as the provision which allows him to appoint a caretaker chief minister follows the provision which obligates him to announce the dates of the elections," Ibrahim said.
“As such, the constitutional command isn’t that the governor can derelict from his duties if he isn’t the one dissolving the assemblies,” he noted.
For Ibrahim, it is that the governor ought to announce the date of the elections which must be within 90 days of the dissolution of the assembly.
President's act 'not against' constitution
Others, such as acclaimed lawyer Dr. Ikramul Haq thinks otherwise. He believes that the decision of the President to announce dates for elections of Punjab and Khyber Pakhtunkhwa assemblies is not against the Constitution.
“He is the custodian of the Federation of Pakistan and is duty bound to ensure its supremacy. The Election Commission of Pakistan (ECP) has not been fulfilling its Constitutional duty,” Dr. Ikram said.
For him, the Constitution unequivocally says that elections have to be held in 90 days, wherever any assembly is dissolved sooner than its normal time of five years provided in the Constitution.
“Under Article 219(d) it is the duty of ECP to hold general elections to the National Assembly, Provincial Assemblies and the local governments,” he said. Section 57 of the Election Act 2017 also gives the President powers to announce the dates of general elections to the assemblies — both federal and provincial.
Dr. Ikram believes that not mentioning who should declare the date of elections in the Constitution implies that it is the duty of Governors in respective provinces, and for the National Assembly, that of the President.
“If any Governor fails to perform the duty, it is then the President to do the same,” Dr. Ikram concluded.
A similar position is taken by lawyers representing PTI, who contend that a 'flawed' debate was going on as to whether the president had the power to announce elections or not.
Instead, the issue is whether “someone has the power to announce the dissolution of the assembly.” The Lahore High Court answered the question by giving the responsibility to the ECP. "However, if the ECP does not accept the Lahore High Court's decision, then the president has the right to announce the date" under Section 57 of the Elections Act 2017.
Lawyer Ahmad Pansota also believes the president's decision is based on legal merit.
https://twitter.com/pansota1/status/1627689716429516802
Matter will be decided by the courts
Speaking to TFT, acclaimed political analyst and former caretaker chief minister of Punjab, Dr. Hasan Askari Rizvi said that, "it seems that constitutional confusion and political turmoil will continue to increase after President Alvi’s today's announcement and this matter will also be decided by the superior courts".
PTI leaders 'warned Alvi against this move'
A senior PTI leader, who wished not to be named, told TFT that some of the top tier leaders had warned President Alvi and Imran Khan not to go for this move, as it would exacerbate the constitutional crisis, and also create more political instability in the country.
PMLN 'rejects' President’s move
PMLN Punjab President and Federal Interior Minister Rana Sanaullah said that President Alvi has nothing to do with election dates, which was the prerogative of the Election Commission of Pakistan. “President Alvi cannot force the ECP to comply with illegal and unconstitutional orders,” he pointed out.
Agreeing with him, Federal Information Minister Marriyum Aurangzeb had also said the office of the President should be loyal to the Constitution and any violation could invoke Article 6.
PPP calls Alvi’s announcement 'interference in ECP’s domain'
Talking to TFT, PPP Punjab’s Secretary General Syed Hassan Murtaza said that President Alvi cannot remove anyone’s teeth without the patient's consent as a dentist. “How could he announce the dates of elections?” He asked while adding that President Alvi is using his office for political conspiracies.
"He had violated the constitution by announcing the dates of elections of KP and Punjab. He also has no authority to call the Chief Election Commissioner for consultation regarding the date of elections of KP and Punjab".
ANP says President overstepped constitutional boundaries
Speaking to TFT, Awami National Party’s Secretary Information Samar Haroon Bilour said that by announcing the dates of KP and Punjab elections, President Alvi has overstepped his constitutional boundaries.
“It seems that he (President Alvi) is acting like Imran Khan’s chief of staff after Shahbaz Gill who has been sidelined by PTI,” Samar said. She added that President Alvi was not behaving like the President of Pakistan, but in fact he was behaving more like Imran Khan’s worker.