Constitutional quagmire: Untangling the delay in Pakistan’s general elections

The clash between constitutional mandates, the role of the ECP, and the political landscape's influence all contribute to the complexity of the given situation.
Published August 24, 2023

Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.

German philosopher Karl Marx opens the 18th Brumaire of Louis Bonaparte with these lines and then goes on to give a series of examples of tragic and farcical figures from French history. It almost seems he was writing a warning for Pakistan.

In recent weeks, the last-minute approval of the census by the Council of Common Interests (CCI), and the subsequent initiation of the delimitation process by the Election Commission of Pakistan (ECP) without announcing the polling date has raised fears that there may be no elections in the near future.

While it may still be too early to call, the fears aren’t exactly unfounded. For we have seen this tragedy play out before — hence the alarm that we may see a repeat of the days of Gen Ziaul Haq, who promised elections in 90 days, which ultimately turned out to be 11 long years.

In this article, we delve into the intricacies of the delay in general elections beyond the constitutionally mandated deadline, the electoral process, and the factors affecting the timeline for holding elections, focusing on the constitutional provisions, the election commission’s role, and the wider political context. Lastly, this article also critically assesses whether it is even possible to conduct the elections in 90 days, given the circumstances we now find ourselves in.

Challenges in Pakistan’s election process and inter-institutional coordination

Conducting general elections in Pakistan involves intricate coordination between various institutions, resources, and stakeholders. Constitutionally, it is the ECP that is primarily tasked with conducting and overseeing the elections, but it faces a structural constraint that hinders its capacity and independence.

1. ECP’s mandate and constraints

The ECP is responsible for tasks such as preparing electoral rolls, delimiting constituencies, appointing election officials, issuing schedules, allocating symbols, and supervising the polling process. While it is independent and constitutionally empowered, the ECP lacks its own personnel and resources, relying on external entities like the bureaucracy, district administration, police, and the judiciary for support.

2. Resource dependency and financial challenges

The ECP’s dependence extends to finances from the government and reliance on the federal and provincial bureaucracy for election duties and security. If the federal government refuses to release funds for the elections, the ECP can be handicapped as was seen in the recent dispute that emerged when Parliament refused to allocate funds for the provincial elections in Punjab despite the Supreme Court’s orders.

In terms of human resource, the extent of this dependence can be gauged from the figures of election officials and security staff deployed on election duty in the 2018 general elections. According to the Senate Report, 2,720 district returning officers (DROs), 85,307 presiding officers, 510,356 assistant presiding officers and 255,178 polling officers were deployed on election duty. In addition to the polling staff, 371,000 active army personnel were deployed for security during the elections.

3. Judicial intervention and controversy resolution

The ECP has also historically relied on the judiciary for conducting elections and adjudicating election-related disputes. The appointment of judges as returning officers (ROs) — the person responsible for overseeing elections and announcing results in one or more constituencies — for elections in Pakistan has been a contentious issue for a long time.

Historically, ROs used to be judges from the district judiciary. However, this practice was discontinued by the judiciary under Chief Justice Iftikhar Chaudhry. The National Judicial Policy Making Committee (NJPMC), in the National Judicial Policy 2009, aimed to protect the independence and integrity of the judiciary by curbing its involvement in the election process, which could potentially expose it to political controversies and allegations of rigging as had been the case in the past. The policy also stated that the existing laws did not require the judiciary’s supervision for the elections, and that it should focus on its core function of dispensing justice.

However, this policy could not be implemented in the 2013 and 2018 general elections, primarily due to the ECP’s lack of readiness. In 2018, political parties also supported the ECP’s stance to appoint judicial officers as ROs.

The appointment of judicial officers as ROs in the 2013 and 2018 elections was a contentious issue that affected the judiciary’s reputation. The judiciary had decided to avoid getting involved in the election process, as stated in the 2009 policy, to protect its independence and integrity. However, the ECP and political parties requested the judiciary to waive its policy and provide judicial officers as ROs, believing that they would ensure a fair and transparent election process.

The judiciary relented in both cases, but faced allegations of rigging and bias from different political parties and candidates, especially from Pakistan Tehreek-i-Insaf (PTI) chief Imran Khan, who accused the former chief justice, Iftikhar Muhammad Chaudhry and the Jang/Geo media group of rigging the 2013 elections in favour of the PML-N. The 2018 elections were also controversial and disputed, as many candidates complained about the delay in the announcement of results and the malfunctioning of the electronic voting machines. The judiciary’s role as ROs in these elections raised questions about its credibility, as well as its core function of dispensing justice.

Following the controversy, the ECP has been appointing ROs from the district administration, with deputy commissioners being granted the status of district ROs. However, this model also faced problems when the ROs appointed for by-elections during the PTI-led government’s tenure performed a dubious role in facilitating ruling party candidates in Punjab. The district administration is directly appointed and controlled by the provincial government — expecting it to be impartial in elections is perhaps asking too much from our system.

When the ECP, after a thorough inquiry, attempted to take punitive penal action against the ROs, the Lahore High Court (LHC) declared such action beyond the legal competence of the commission. Due to the partial failure of this experiment, the ECP recently attempted to revert to the old model — it once again requested ROs from the judiciary, but the LHC refused to provide them, arguing that it would affect judicial work and compromise the impartiality of judges.

At the same time, high courts also designate justices for Election Appellate Tribunals for adjudicating election disputes.

Constitutional courts, particularly the Supreme Court, also become major players in the elections. Due to the SC’s expansive interpretation of the Right to Association in the famous Nawaz Sharif case, political parties have become major players in constitutional litigation before constitutional courts. It is alleged with much credence that courts, especially the SC under CJP Saqib Nisar, were instrumental in handicapping and knocking out Nawaz Sharif and his party in the 2018 elections. It is being alleged that now the courts are being employed to do the same with Imran-led PTI.

Similarly, the precedent established by the controversy over the delay in general elections in Punjab and Khyber Pakhtunkhwa assemblies has further complicated the role of the higher judiciary. The SC, in a split verdict, ordered the elections to be held within 90 days of the dissolution of the assemblies in line with the Constitution. However, the ECP and the outgoing ruling coalition refused to comply with the court’s orders, citing the need for fresh delimitation of constituencies based on the census results.

The SC faced legal and practical difficulties in enforcing its orders. It also faced resistance and non-cooperation from the executive, the ECP, and the military, who challenged its jurisdiction and authority. The orders were violated without any penalties, undermining the SC’s credibility and independence.

Steps in Pakistan’s electoral process: From delimitation to casting votes

Conducting a general election in Pakistan involves a comprehensive series of intricate steps and processes that culminate in the selection of representatives. The primary stages of this process encompass delimitation, preparation of electoral rolls, and notification of the election programme.

On the surface, the present crisis has been caused by the CCI’s approval of the census results. Constitutionally, the ECP is required to carry out delimitations after the publication of census results — which is required to be conducted every 10 years. Let’s briefly understand the controversy over the census approval before we examine the steps involved in delimitations.

Census approval by CCI

The CCI, a constitutional body tasked with resolving disputes related to power-sharing between Pakistan’s federal government and its provinces, approved the census results on Aug 5, 2023. The approval was long delayed due to objections and concerns raised by certain provinces regarding the accuracy and transparency of the census data.

To address these issues and ensure data integrity, the CCI established a committee to conduct a third-party audit of the data. This approval was essential to initiate the process of constituency delimitation, which aims to create electoral units based on population and other factors to ensure equitable representation in Parliament and provincial assemblies. However, the CCI’s composition, including non-elected chief ministers from Punjab and KP sparked controversy and criticism over its representation and raised questions about its decisions.

Furthermore, the role of the Sindh chief minister, a member of the PPP, came under scrutiny. Despite being aware of speculations that the census results might be exploited to delay elections, the chief minister endorsed the same. Critics viewed this move as contradictory to the PPP’s stated opposition to election delays, deeming the opposition performative rather than a genuine commitment to democratic principles.

Preparing the ground: The delimitation process

The foundational phase of Pakistan’s election process is delimitation — the delineation of electoral constituencies based on census data. The primary objective is to ensure equitable voter representation and account for changes in population distribution. The ECP shoulders the responsibility of delimiting constituencies. The critical steps involved are:

1. Establishment of delimitation committees: The ECP assembles committees for each province and the federal capital, comprising its officials.

2. Obtaining census data and maps: The ECP obtains official census data and maps from the Pakistan Bureau of Statistics and provincial governments, outlining population and administrative divisions.

3. Determining district quotas: Based on the census data, the ECP determines the number of seats allocated to each district in the National Assembly and provincial assemblies, factoring in population, area, and parity.

4. Preparing preliminary delimitation: Delimitation committees draft preliminary constituency boundaries, considering principles such as compactness, existing boundaries, natural features, facilities, and public convenience.

5. Publishing preliminary list of constituencies: Committees release a preliminary list of constituencies in the official gazette, inviting public objections and suggestions within 30 days. This is the only step for which a mandatory minimum period of 30 days is required by law.

6. Hearing and deciding objections: The ECP reviews objections and suggestions from the public, making necessary amendments, alterations, or modifications within 30 days. The law provides a maximum period only; it follows that the ECP can decide on objections before 30 days as well.

7. Publishing final list of constituencies: A final list of constituencies is published in the official gazette, effective for the upcoming general elections.

According to the ECP’s announcement, the process of delimitation is going to take four months, the same as it took in 2017. There is no reason that considering the extraordinary circumstances, this process could not be cut short to 45-60 days. The onus to proactively disclose why the process cannot be completed earlier lies on the ECP.

Finalising the spectators: Preparation of electoral rolls

Another major step in the election process is the preparation of electoral rolls. Electoral rolls are the lists of eligible voters who can participate in the elections. Electoral rolls are prepared, revised, and maintained by the ECP using various data sources, such as the National Database and Registration Authority (NADRA), previous electoral rolls, and door-to-door enumeration. According to the Elections Act, 2017, the ECP is required to update the electoral rolls regularly with the help of Nadra.

Nadra provides the ECP with information about new registrations, deaths, transfers, corrections, and other changes in the status of citizens. The ECP then incorporates these changes into the electoral rolls and publishes them for public inspection and objection. It also conducts an annual revision of electoral rolls to ensure their currency and validity.

This step does not have to strictly follow every census or delimitation as the ECP is legally required to, and does in practice, update the electoral rolls. However, there is a risk that if the elections are to be delayed further, the ECP may issue a schedule for preparing electoral rolls. The possibility of this hurdle has been hinted at by the former ECP secretary, who is currently part of the Punjab caretaker government.

Appointment of referees and finalising the playing team: Election programme notification

Following the completion of delimitation, the second major phase involves appointing impartial personnel to facilitate the electoral process, which requires the notification of the election programme. This entails election campaign scheduling, candidate nomination, scrutiny of nomination papers, symbol allocation to contesting candidates, and the final casting of votes. Key steps within this phase are:

1. Appointment of temporary state machinery: The ECP, lacking a permanent workforce, borrows personnel from the district and provincial executive machinery. DROs supervise elections in each district, alongside presiding officers, assistant presiding officers, and polling officers responsible for polling station management.

2. Determination of polling stations: The ECP determines polling station numbers and locations for each constituency, taking factors like population, accessibility, and security into account.

3. Public notice by ROs: DROs issue public notices, inviting nomination papers from candidates aspiring to contest elections within their respective constituencies.

4. Nomination paper submission: Candidates submit nomination papers containing personal details, party affiliation, assets, liabilities, educational qualifications, criminal record, etc. Nomination papers must be signed by the candidate and seconded by two voters from the constituency. Submission is within a specified time frame issued by the ECP.

5. Publication of nominated candidates’ names: ROs publish the names of nominated candidates on notice boards and websites within their constituencies.

6. Scrutiny by ROs: DROs scrutinise nomination papers to verify eligibility and validity, rejecting incomplete or false submissions.

7. Appeals against acceptance or rejection: Candidates and voters can appeal against acceptance or rejection of nomination papers. An Appellate Tribunal, appointed by the ECP in consultation with the chief justice of the relevant high court, reviews appeals within seven days.

8. Publication of revised list of candidates: After addressing appeals, DROs release a revised list of eligible candidates contesting the elections within their constituencies.

9. Withdrawal of candidature: Candidates can withdraw their candidature by submitting written notices to the DRO within three days of the revised candidate list’s publication.

10. Final list of contesting candidates: After withdrawals, DROs publish the final list of candidates vying for elections in their respective constituencies.

11. Allotment of election symbols: The ECP assigns an election symbol to each candidate or party from an approved list, helping voters identify their preferred choice on the ballot paper.

12. Printing of ballot papers: The ECP prints ballot papers for each constituency, featuring the names, symbols, and photographs of all contesting candidates.

If the ECPs past schedule for elections in Punjab is any guide, the minimum time required for conducting elections after issuance of the election schedule is about two months.

Polling day

The third major phase is the polling day. Voters go to their assigned polling stations and cast votes for their chosen candidates. The polling officers count the votes at each polling station and announce provisional results. The DROs compile and consolidate the results from all polling stations in their respective constituencies and announce official results. The ECP declares the final results of the election after receiving and verifying all the results from the DROs.

Constitutional and political considerations on timely elections

At the heart of this debate lies the constitutional requirement mandating the conduct of general elections within 90 days in the event of an early dissolution of the government. This provision, enshrined in the Constitution is meant to ensure a swift and efficient transition of power and democratic continuity even in the face of unexpected political changes.

However, the situation becomes more complex when juxtaposed with another constitutional provision — the need for fresh delimitation of constituencies following the approval of a census, as is the case today. While delimitation is essential for accurate representation and ensuring equal population distribution among constituencies, it presents a potential conflict with the 90-day mandate. The ECP faces the daunting task of balancing the two constitutional mandates.

The ECP has proposed a schedule that appears to exceed the stipulated 90-day period, thereby raising concerns of constitutional non-compliance. According to the ECP’s projected timeline, elections could potentially be held at least three months later than constitutionally required. Critics argue that such a delay could undermine the spirit of prompt democratic elections.

A crucial aspect to consider is the political landscape’s influence on this situation. The outgoing PDM-led ruling coalition is accused of harbouring intentions to prolong the election timeline beyond the mandated 90 days. While some reservations were expressed within the PPP, there appears to be a broader push to delay elections. For instance, the delay in convening the CCI meeting to approve census results has raised eyebrows, hinting at a calculated effort to slow down the electoral process.

One argument advanced by the ECP is that the two constitutional requirements — timely elections and delimitation after a census — might be inherently contradictory, leading them to prioritise the latter. In a functional democracy with an independent election commission, this could be a legitimate justification. However, given Pakistan’s recent political history, scepticism is high.

The question of good faith becomes central to this discussion. Concerns have been raised about the ECP’s genuine efforts to expedite the delimitation process given the time-consuming nature of the process. The ECP’s alleged inclusion of extended timelines for each phase of the delimitation process raises questions about whether they are making an earnest effort to streamline procedures.

The outgoing government’s motives also draw attention. The delay in approving census results by the CCI, coupled with the potentially calculated delays in the election schedule, fuel allegations of mala fide intentions. Critics suggest that these actions collectively indicate a lack of commitment to ensuring timely elections.

Navigating the electoral maze

The general elections, which lie at the heart of Pakistan’s democratic process, now stand at a crucial crossroads, placing the incoming Chief Justice Qazi Faez Isa and the Supreme Court of Pakistan in a complex constitutional and institutional balance of power conundrum. The impending controversy over the timing of these elections is anticipated to become a pivotal point of contention for the judiciary. The outcome of this issue will be crucial for the credibility and independence of both the SC as an institution and the incoming CJP’s moral authority.

The crux of this challenge lies in the eventual adjudication of the matter by the constitutional courts. While the incoming chief justice has of late shown a penchant for judicial activism, the delicate nature of this situation may compel him to think hard before intervening. If the CJP does not intervene, it will be perceived as a cop out and a serious dereliction of the SC’s perceived role as the ultimate arbiter of all things constitutional. It will go down in history as a deal with the devil.

If he does intervene, it will bring him directly in conflict with other institutions. This potential intervention could paradoxically further undermine the court’s independence if the major portion of the judiciary and bar does not rally behind the SC’s decision.

Legal intricacies complicate this situation even further. The focal point would be how the SC approaches the judicial review of the ECP’s assertion that holding elections within the mandated time is unfeasible due to the requisite delimitation process. Justice Isa’s recent and apparently strategic alignment with the idea of judicial restraint in matters concerning other institutions alongside like-minded judges, underscores the complexity.

They have previously criticised instances where the SC overstepped its boundaries by intruding into the domains of other institutions and superseding executive decisions and parliamentary legislations. This stance raises the query of how the SC can substitute the ECP’s decision with its own. The litmus test for such a judicial review would necessitate demonstrating the decision as either mala fide or unlawful — an exacting standard demanding compelling, irrefutable evidence.

However, the practical facet is equally significant. The SC’s capacity to enforce its decision, should it mandate the elections within a specific timeframe, is overshadowed by a disconcerting precedent — the disregard of Chief Justice Bandial’s order to conduct elections in Punjab and KP. The lack of consequence of this violation raises pertinent questions about the court’s efficacy in enforcing its decisions and maintaining institutional authority.

In short, Justice Isa’s stewardship faces a turbulent start. Striking a balance between the constitutional prerogative for timely elections and respecting institutional boundaries is an intricate tightrope walk. The outcome will profoundly shape not just the SC’s standing as the guardian of the Constitution, but also Justice Isa’s legacy as a jurist navigating a complex and politically charged landscape.

The clash between constitutional mandates, the role of the ECP, and the political landscape’s influence all contribute to the complexity of the given situation. Considering Pakistan’s history of political interference and the establishment’s influence, the major burden rests on the ECP to demonstrate its commitment to a transparent and efficient electoral process.

Ultimately, however, this requires a commitment to upholding democratic values by all stakeholders, including state institutions and democratic parties.