President Dr Arif Alvi on Wednesday wrote a letter to Chief Election Commissioner (CEC) Sikandar Sultan Raja and proposed that elections be held by November 6.
The letter comes against the backdrop of reports that the president would unilaterally announce a date for the elections. But contrary to the said reports, the missive is a mere suggestion, rather than a declaration of the election date, analysts said.
In the letter, the president said he had dissolved the National Assembly on the prime minister’s advice on August 9.
The president cited Article 48(5) of the Constitution, which he said “empowers and mandates the president ‘to appoint a date not later than 90 days from the date of the dissolution, for the holding of a general election to the Assembly’”.
Hence, “in terms of Article 48(5), the general election to the National Assembly should be held by the 89th day of the date of dissolution of the National Assembly, i.e. Monday, 6th day of November 2023”, the letter read.
The president recalled in the letter that “in an endeavour to fulfil the constitutional obligations, the chief election commissioner was invited for a meeting to devise the modalities of implementing the constitutional intent and mandate”.
But in his reply, the CEC “took a contrary view that as per the scheme of the Constitution and framework of electoral laws, it was the domain of the election commission, and following the publication of last preceding census on August 7, duly notified delimitation of constituencies was in progress, a mandatory requirement stipulated by Article 51(5) of the Constitution and section 17 of the Elections Act, 2017”, the letter said.
Moreover, the law ministry also had the same view on the matter, it said, adding that all four provincial governments were of the opinion that the announcement of the election date was the Election Commission of Pakistan’s (ECP) mandate.
“Further, there is a consensus that to strengthen the federation and to promote unity and harmony amongst provinces and to avoid incurring unnecessary expenses, general elections to the National Assembly and the provincial assemblies must be held on the same day,” it further stated.
Acknowledging that it was the ECP’s responsibility to abide by all the constitutional and legal steps stipulated under Articles 51, 218, 219, 220 and the Elections Act, 2017 for organising and conducting free and fair elections, the president advised that the ECP, in “consultation with provincial governments and political parties under the relevant provisions of the Constitution and in view that some of these matters are already subjudice, may seek guidance from the superior judiciary for announcement of a single date for general election to the national and provincial assemblies”.
The ECP has yet to issue a response to the letter.
The president’s advice to the CEC comes against the backdrop of divided opinions among stakeholders on the time frame for elections.
According to Article 244 of the Constitution, elections are supposed to be held by November 9, within 90 days of the premature dissolution of the National Assembly (NA) on August 9.
However, the ECP says the elections will be pushed beyond the constitutionally mandated cutoff date following the notification of new 2023 digital census results. The ECP bases its decision on Section 17(2) of the Elections Act, which states: “The commission shall delimit constituencies after every census is officially published.”
Similarly, while the president has highlighted constitutional provisions authorising him to announce the poll date, the ECP refers to a recent amendment to the Elections Act 2017 that empowered the commission to announce the dates for polls unilaterally without having to consult the president.
When the president sought the law ministry’s advice on the matter last month, the latter communicated to him that the powers to announce the poll date rested with the ECP.
Interim Prime Minister Anwaarul Haq Kakar has taken the same position on the matter but has also clarified that the caretaker government would act in accordance with the court ruling if the Supreme Court issued a binding judgement for elections to be held within the prescribed period of 90 days.
Earlier today, caretaker Law Minister Ahmad Irfan Aslam held a meeting with the provincial law ministers, during which participants underscored the importance of upholding the principles of democracy and ensuring the smooth conduct of elections.
It was unanimously agreed that the Constitution must be “read as a whole” and no provision of the Constitution be read in isolation from other relevant provisions. As per the Constitution, the conduct of general elections and announcement of election dates is the sole competence of the ECP, said a statement carried by state-run APP.
The statement added that provincial law ministers called for holding elections of all legislatures on the same day and asserted that it was the responsibility of all state organs to respect the autonomy of the ECP and its authority in carrying out the delimitation of constituencies and determining the election schedule.
Separately, British High Commissioner Jane Marriott said she had an important meeting with CEC Raja today. “We agreed that it’s crucial the country sees free, credible, transparent and inclusive elections in line with the law,” she posted on social media platform X.
Voices have been growing louder recently from many quarters, including the PPP, PTI, Supreme Court Bar Association and Pakistan Bar Council, for either the president or the ECP to announce the election date and the polls to be held within the constitutionally mandated 90-day period.
The PTI welcomed today’s development and said the president had fulfilled his constitutional duty.
ECP has prime mandate: PM Kakar
Meanwhile, caretaker Prime Minister Anwaarul Haq Kakar said during an interview on Samaa TV show Nadeem Malik Live that the “prime mandate” for giving the election date lay with the ECP.
“The president has suggested a date. They (ECP) will do their due diligence and deliberations on it and the required conditions to conduct free and fair polls. I think the ECP will soon announce [the date] after coming to a conclusion on what will be the appropriate day and date [for elections].”
He added that realistically, if the delimitation process proceeded smoothly then any day could be chosen as the election date between the middle and end of January.
Kakar said the caretaker government was “completely ready” to support the electoral process, adding that the interim set-up’s role was to assess the electoral process and “our preparation is more or less almost complete.”
Following the president’s proposal to the CEC today, lawyer Abdul Moiz Jaferii termed the letter a “damp squib” and “toothless”.
“Everyone knows what ‘should’ be the date. Everyone was looking at you to give the date. My dear dentist, this is toothless,” he posted on X (formerly Twitter).
Former attorney general for Pakistan Ashtar Ausaf Ali explained while speaking to Geo News that in his letter, the president had suggested a date for elections, not appointed a date.
He said the president did not have any mechanism or executive right to appoint the election date. Appointing the election date was the ECP’s job, he added.
Ali stressed the need for consultation with stakeholders on elections, reiterating that organising polls was the ECP’s job.
Legal expert Reema Omer also asserted that the president’s proposal to hold elections on November 6 was “no ‘appointment’ or ‘announcement’ by any stretch”.
In a subsequent post, she highlighted that the president’s suggestion for the ECP, provincial governments and political parties to “fight out election date in the SC (Supreme Court) because he doesn’t have what it takes to fulfil his constitutional obligation” was the “operative part” of the letter.
The mention of Nov 6 as the latest election date is a red herring,“ he added.
Constitutional expert Hafiz Ahsaan Khokhar was of the view that the president giving a suggestion on polls as in today’s letter was “constitutionally and legally contrary to the law”.
“He has no mandate to give this kind of direction to the ECP,” he told Geo News.
Meanwhile, former AGP Irfan Qadir said while speaking on DawnNewsTV that announcing the election date did not fall under the president’s purview.
“Governor-generals or presidents in Pakistan have never before initiated such things. This is the first time this has happened that he (President Alvi) has done something like this on the advice of his legal advisers,” Qadir claimed, adding that the presidency was a very important and dignified office, but also that was “symbolic and ceremonial”.
Similarly, former ECP secretary Kanwar Mohammad Dilshad said while speaking to DawnNewsTV that the president did not have any jurisdiction to give a date for the election or any suggestion on the matter.
But Barrister Asad Rahim, who emphasised the clarity of the Constitution regarding the president’s role in determining the election date while speaking to DawnNewsTV, had a different view.
He explained that while the president typically adheres to the prime minister’s advice in federal matters, the Constitution grants the president discretionary authority to announce the election date at the federal level.
He cited the example of late former president Mamnoon Hussain, who had consulted the electoral watchdog before announcing election dates, saying “it is hoped that a similar process will be followed this time and the ECP will fulfil its designated role.”
Rahim added: “If the ECP finds itself unable to specify an election date due to any extraneous circumstances, the president can exercise his discretion to announce the election date.”
He pointed out that the Constitution should not be interpreted provision by provision, but rather as a whole document. “Constitution unambiguously stipulates that elections must take place within a 90-day timeframe,” Rahim said.
Meanwhile, Pakistan Institute of Legislative Development and Transparency President Ahmed Bilal Mehboob said he was “surprised and worried” at “why such a confusing and unnecessary letter is being written by a personality occupying the high office of the presidency.”
“This letter conveys nothing except telling the ECP to take guidance from the superior judiciary on what the election date should be and consult provincial governments and political parties [on the matter],” Mehboob opined while speaking to Geo News.
It was a “meaningless” letter that would achieve no result and only create confusion, he reiterated, opining that the president had written the letter to respond to the PTI’s demands for an election date announcement without having to commit to a date.
Additional input from APP