In case the general polls are held within the prescribed time period, the Election Commission of Pakistan stands empowered to scrutinise the candidates’ nomination papers within 30 days, which can be done through a Presidential Order, according to the constitutional and electoral experts.
In separate conversations with this correspondent, noted lawyer SM Zafar and former Secretary ECP Kanwar Dilshad were unanimous in their views that the ECP was empowered to increase the time period for scrutinising the nomination papers of the electoral candidates with the approval of the President of Pakistan, to be granted through Presidential Ordinance, while linking this scenario to certain conditions.
Kanwar Dilshad cited Article 107 of The Representation of the People Act 1976 that authorises the ECP to make rules with the President’s approval. This article states, “The Commission may, with the approval of the President, make rules for carrying out the purposes of this Act.”
According to Dilshad, the ECP can simply amend the Article 11 (1) (b) of RoPA 1976 in the light of Article 107 to increase the scrutiny period.
“The concerned section of the RoPA (Representation of the People Act 1976) can be amended through a Presidential Ordinance. The legislation is not necessary,” he said.
The Article 11 (1) (b) states, “The dates for the scrutiny of nominations, which shall be the seven days immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday.”
SM Zafar said, even a Presidential Ordinance is not required if the NA is dissolved early and general elections are held within 90 days after its dissolution,
Citing constitutional provisions, he contended that parliamentary legislation to amend the electoral laws would be required if the general elections were held within 60 days after the NA dissolution. “The constitution provides for holding general polls within 60 days after NA dissolution. In such case, increasing the scrutiny period for candidates’ nomination papers would require a parliamentary legislation for amending the electoral laws. The parliamentary term of the present NA expires on March 16 and if the NA is dissolved at the earliest, the ECP would automatically get one month to scrutinise the candidates’ nomination papers. A Presidential Ordinance can also be introduced to increase the scrutiny period, “ he said adding that the electoral body, without a Presidential Ordinance, would not be empowered to scrutinise the nomination papers if the polls were to be held within 60 days after the NA dissolution. “This cannot be done because constitution does not allow so,” Zafar said.
Signed between the government representatives and Dr Tahir-ul-Qadri on this January 17, the Islamabad Declaration envisaged NA dissolution before the coming March 16 and a month time period for scrutinising the nomination papers of the general polls’ candidates
“The National Assembly shall be dissolved at any time before March 16, 2013, (due date), so that the elections may take place within the 90 days. One month will be given for scrutiny of nomination paper for the purpose of pre-clearance of the candidates under article 62 and 63 of the constitution so that the eligibility of the candidates is determined by the Elections Commission of Pakistan. No candidate would be allowed to start the election campaign until pre-clearance on his/her eligibility is given by the Election Commission of Pakistan,” the Declaration’s first point states.
Questioning the capacity of the ECP regarding the scrutiny issue, the Democracy Reporting International (DRI), an electoral watchdog, says in a statement, “Even if the RoPA is amended, the ECP has neither the regulation nor the capacity to scrutinise nomination papers of over five thousand candidates for 1,070 national and provincial assembly seats within one month.”
More than 5,000 candidates had contested the general elections 2008 for 272 NA seats.
On this January 23, the ECP ‘approved’ the draft proposal on increasing the candidates’ nomination papers’ scrutiny time period from seven to thirty days. It had also approved the Code of Conduct for general polls and incorporated it into the electoral laws. The proposal on increasing the scrutiny period is also endorsed by the Senate’s Special Committee on Election Affairs. However, the proposal requires parliamentary legislation that is not likely.