06:13
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ISLAMABAD: No constitutional provision allows delaying the elections by installing a caretaker set-up for a period exceeding 60 days or 90 days-only in case of dissolution of assemblies, and any attempt to get the elections delayed beyond May 15, 2013 will be a breach of the Constitution.
Elections of the provincial assembles cannot be delayed even in case of emergency. In case of delay of elections due to war or foreign aggression, constitutionally, no new set-up/government can be installed at the Centre and present government continues.
The term of National Assembly is expiring on March 16, 2013 and under Article 224(1) of the Constitution, the elections of the lower house of the parliament “shall be held” within sixty days “immediately following the day on which the term of the assembly is due to expire” and thus NA election must be held on or before May 15, 2013.
As Election Commission of Pakistan (ECP) requires at least 45 days to complete election formalities, so under the Constitution and relevant election laws and rules elections must be held between May 1, 2013 to May 15, 2013.
If the National Assembly is not dissolved before the expiry of its term (i.e. March 16, 2013), the present coalition government will have to go home at midnight, March 16, 2013 or it can survive for only eight more days (till March 24, 2013) if a consensus was not availed on the next caretaker prime minister.
Under the newly-inserted Article 224A (through 20th Amendment in the Constitution), the PM and leader of the opposition will have three days to reach a consensus on the name of new caretaker PM after the date of expiry of the term of assembly (till March 19, 2013), an eight-member parliamentary committee will also have three days (till March 22, 2013) to finalise the name of new caretaker PM (from the names sent to it by PM and the leader of the opposition in case they failed to reach a consensus) and finally in case of inability of this parliamentary committee to reach a consensus, the ECP will have to decide the name of caretaker PM within two-days (till March 24, 2013).
If the above scenario fails to reach a consensus by the PM and leader of the opposition and by the parliamentary committee, under Article 224A(4), the incumbent PM will continue to hold the office.
In case, the assemblies are dissolved, says Article 224(2), elections are to be held within 90 days. There are no chances of dissolution of assemblies before expiry of their terms, though the same could be considered in view of extremely hot atmosphere in month of May in most of the areas of the country. In case the National Assembly is dissolved (say one-day prior to the expiry of its term on May 15, 2013), elections will have to be conducted between the dates April 30, 2013 to June 13, 2013 (keeping in view the 45 days required by the ECP).
Elections can be held even earlier by dissolving the National Assembly/provincial assemblies to avoid hot temperatures of summers.
According to constitutional experts, elections can be held earlier than their expected time but any attempt whatsoever and on any grounds whatsoever to delay it will be unconstitutional.
Emergency provision of Article 232, according to experts, are also widely misunderstood. Under this Article, the president can impose state of emergency in only two situations; i) in case of war or foreign aggression ii) internal disturbance beyond the power of a provincial government to control.
Senior legal and constitutional expert SM Zafar said that except provisions of emergency in the Constitution, elections cannot be delayed under any other article of the Constitution.
Zafar, however, said that interpretation of Article 254 can be stretched to either side. He said that if under Article 254, any act will not be considered invalid on the ground that it is delayed than the time fixed for it in the Constitution, one can argue in advance that an act can be delayed as merely by delaying its validity will not be challenged.
“But, it needs intense debate,” Zafar said. He said that incumbent Chief Election Commissioner has decided in advance to delay a recent by-election beyond the mandatory constitutional time-duration on basis of Article 254 as these were falling in month of Moharram.
According to legal and constitutional expert, Salman Akram Raja, the president can impose emergency at his own only in case war or foreign aggression.
“After the 18th Amendment and addition of first proviso after clause (1) of Article 232, emergency can be imposed in any province after provincial assembly of that province passed a resolution in this regard,” Salman said, adding: “If emergency has to be imposed in whole country on basis of internal disturbance, passing of resolutions from all provincial assemblies is a must and without that president cannot impose emergency on this count at his own.”
Salman said if after all this, emergency is imposed, the National Assembly can extend its tenure up to one-year but in that case no new set-up/government can be introduced and the present assemblies and government will continue.
According to constitutional expert Babar Sattar, there seems no chances of imposition of any kind of emergency and even the ruling PPP is not at all interested in it.
“Despite all this, if anyone will try to use clauses relating to emergency, validity of all such acts pertaining to this will be decided by the courts,” Babar said.
Salman said that another point needs to be understood that even in case of emergency on any count, elections of the provincial assemblies cannot be delayed in any case.
“Elections of provincial assemblies are to be held in time even if state of emergency is imposed as no clause of Article 232 gives any option for extending terms of the provincial assemblies,” Salman added.
Both Salman Akram Raja and Babar Sattar termed a recent interpretation of the Article 254 as ridiculous. The Article 254 reads as: “When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or other-wise ineffective by reason only that it was not done within that period.”
Both constitutional experts declared that on the basis of this article, elections can never be delayed and doing so will be unconstitutional.
Salman said that this article only means that something needs to be done in a specific period of time under the Constitution, is delayed, any such delayed act will not be invalid merely on the ground of being delayed.
Babar Sattar said courts have to give judgements on some issues in a specific time period and at times the decision comes later than the prescribed period and thus cannot be declared invalid on basis of delay.
Babar said same has been held by courts at times in different judgments. He said that applying this article on elections in any way that ‘if elections are delayed’, there will be no constitutional problem, is simply ridiculous and election cannot be delayed in any case.
Relevant provision of Article 232 reads as: “232. (1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency:
Provided that for imposition of emergency due to internal disturbances beyond the powers of a Provincial Government to control, a resolution from the Provincial Assembly of that Province shall be required:
Provided further that if the President acts on his own, the Proclamation of Emergency shall be placed before both Houses of Parliament for approval by each House within ten days.
(6) While a Proclamation of emergency is in force, Parliament may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation has ceased to be in force.
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