The Constitution of Pakistan (1973) has described the role of the Election Commission of Pakistan (ECP), in addition to the Election Act 2017, under different Articles such as 51, 59, 62, 63, 63A, 113, 213, 214, 215, 216, 217, 218, 219, 220, 223, 224, 225, and 226 of the Constitution of Pakistan. The duties of the ECP have been elaborated in Article 219 of the Constitution, which states that for preparing electoral rolls for elections to the National Assembly, Provincial Assemblies, and local governments, and revising such rolls periodically to keep them up-to-date, organizing and conducting elections to the Senate or to fill casual vacancies in a House or a Provincial Assembly, appointing Election Tribunals, holding general elections to the National Assembly, Provincial Assemblies, and the local governments, and such other functions as may be specified by an Act of Parliament, which is the Election Act 2017.
Section 17 of the Election Act 2017 further states the ECP’s functions. The Commission shall delimit territorial constituencies for elections to the National Assembly, each Provincial Assembly, and the local governments in accordance with the provisions of the Constitution, this Act, the Rules, and the applicable local government law. For that purpose, the Commission shall delimit constituencies after every census officially published. Further, in view of the recent amendment in Section 57(1) of the Election Act 2017, now the process of consultation of the Election Commission with the President has been waived. It is now the prerogative of the Election Commission to announce the date or dates for the general elections by a notification in the official gazette and to call upon the constituencies to elect their representatives. As per Section 58, notwithstanding anything contained in Section 57, the ECP can, at any time after the issue of the notification under sub-section (1) of that section, make alterations in the election program announced in that notification for the different stages of the election or may issue a fresh Election program as may, in its opinion, be necessary for the purposes of the Election Act 2017.
However, the provision of Article 224 of the Constitution relating to the holding of elections prescribes either 60 days or 90 days. But this provision is not independent or isolated; it is completely subject to the completion of the process of delimitation of constituencies as provided in Article 51(5) of the Constitution. This is priorly written in the Constitution before Article 224. The framers of the Constitution decided that the seats in the National Assembly shall be allocated to each province and the Federal Capital based on population in accordance with the last preceding census officially published. This decision was made by the previous government through the Council of Common Interests (CCI), represented by all Chief Ministers under the chair of the Prime Minister. Consequent upon the passage of the Eighteenth Constitutional Amendment in April 2010, the important subjects relating to the Federation have been placed in the Federal Legislative List (Part-II) for the consideration and decision by the Council of Common Interests, and the Census subject is among them.
So, in view of the above clear Constitutional provisions, until the process initiated by Article 51(5) of the Constitution is completed (which ought to be done in 120 days), the provision for triggering the election schedule under Article 224 of the Constitution would not come into place. This is because the provision of Article 224 is completely dependent upon the completion of the limitation process for constituencies under Article 51(5) of the Constitution.
Another Article which is now very much relevant to the present situation is Article 153 of the Constitution. It states that the members of the Council of Common Interests are appointed by the President, and the Council consists of the Prime Minister, who shall be the Chairman, the Chief Ministers of the provinces, and three members of the Cabinet who would be its members. There is no prescription or prohibition in Article 153 of the Constitution that a Caretaker Prime Minister or Chief Minister cannot become part of the proceedings of the Council of Common Interests. Therefore, every decision made by the members of the Council of Common Interests cannot be challenged on the ground that the decision should not have been made by the elected Chief Ministers or Prime Minister. The Council recently decided that the Census results be notified under Article 51(5) of the Constitution.
Therefore, it is very difficult constitutionally to argue for holding the election after dissolution within 90 days of assemblies for the purposes of a general election. In such a situation, if the matter reaches the Superior Court, it would be very difficult constitutionally to establish the maintainability of public interest litigation under Article 184 of the Constitution. This is in view of the clear provisions of Articles 51(5), 153, read with Article 224 of the Constitution, and of section 17 of the Election Act 2017. Furthermore, there are precedents that the Superior Courts generally do not delve into the legal area while hearing cases where there is a clearly mentioned mandatory requirement of the Constitution before taking further steps in a different or another Article of the Constitution. In the present case, the seats in the National Assembly shall be allocated to each province and the Federal Capital based on population in accordance with the last preceding census officially published, as per Article 51(5) of the Constitution, before holding the next general election.
Thus, the ECP cannot be constitutionally or legally compelled, under the present extraordinary constitutional circumstances, to announce the schedule for holding the general election within 90 days without fulfilling the mandatory requirement imposed upon them under Article 51(5) of the Constitution, read with section 17 of the Election Act 2017. These provisions are constitutionally and legally binding in nature upon the ECP. The new Census has been notified by the federal government after the unanimous decision of the Council of Common Interests prior to the dissolution of the National Assembly and the two other Assemblies. Moreover, the schedule of limitation or delimitation has been issued in pursuance thereof by the ECP under Article 51(5) of the Constitution, read with section 17 of the Election Act 2017, and the completion within 120 days has been notified.
However, in such a situation, if the subject matter reaches the Superior Court through the filing of a case, it would be very difficult to legally argue that the provisions of Article 51(5) of the Constitution can be bypassed or that Article 224 should take precedence or have an overriding effect upon the mandatory provisions of Article 51(5) of the Constitution, read with section 17 of the Election Act 2017. However, the only direction or advice that can be given by the Superior Court to the ECP is to complete the process of the delimitation of constituencies as per Article 51(5) of the Constitution at the earliest. Then, the ECP can announce or amend the schedule for the election as per Article 224 of the Constitution, read with the provisions of sections 57 and 58 of the Election Act 2017.