Election timeframes: A constitutional perspective
CONSTITUTION is the supreme document of the land. All state departments derive their authority and laws from the principles laid down in the Constitution. In fact, Constitution is the ground norm that provides the basic legal framework of the State. The State ensures constitutional supremacy and the rule of law in its application. In the legal system hierarchy, constitutional ground norm is on the top while all the existing laws evolve through them. All the departments of the State, ie, judiciary, executive and parliament, fall under the ambit of the principles and rules laid down in the Constitution. The Constitution defines the appointment, selection, elections, and duties of parliament.
The Constitution of the Islamic Republic of Pakistan proposes certain ways to dissolve the national assembly and how it can stand again. Under Article 52 of the Constitution, the assembly is automatically dissolved after successfully completing its term, ie, 5 years. Afterward, elections are held to form the new assembly. When the vote of no confidence is presented against the prime minister under Article 95 of the Constitution, the President has the discretion to dissolve the assemblies under Article 58(2) and conduct fresh elections. During constitutional crises, the Prime Minister of Pakistan may advise the President to dissolve the assemblies under Article 58(1). Besides the procedure laid down in the Constitution, the State of Pakistan had also faced the dissolution of its National Assembly through the imposition of martial law led by military commanders.
The dissolution of assemblies requires the State to reestablish its parliamentary framework by conducting fresh elections. In case of concluding of the term, fresh elections shall be held before the expiratory of 60 days under Article 224(1). However, in any case, if the assemblies are dissolved sooner than the expiratory of the term, the Constitution strictly states that fresh elections shall be held before the expiratory of 90 days after the dissolution by virtue of article 224(2). In the current scenario, the Supreme Court of Pakistan, in addition to the constitutional order, also directed the Election Commission to conduct the elections on May 14th. However, the order was not obeyed at all. The justification for not obeying the order shall be presented to the Supreme Court, and if the honourable court is satisfied with the explanation, only then the Election Commission could be exempted. Otherwise, they have to conduct the elections within the prescribed time.
Keeping the current mercurial situation of the country in view, the explanation may arise the doctrine of state necessity for not conducting the elections. This doctrine has been abolished in Sindh High Court Bar association vs Federation of Pakistan (PLD 2009 SC 789). If the time period of 90 days is exceeded, it may give the validity of doctrine of state necessity. However, if this doctrine is given validity again, it will again give legitimacy to martial law in the country. Furthermore, the Constitution will lose its validity if the direct constitutional orders are not obeyed.
Every act has a consequence, every illegal act has a punishment and every violation has a remedy. However, if fresh elections are not held within 90 days after the dissolution, the Constitution doesn’t provide a direct remedy or punishment. This act is basically a violation of the rules and regulations of the Constitution. If this time period is exceeded, this leads to an extra-constitutional act, and the remedy to the extra-constitutional act is high treason under Article 6 of the Constitution. However, currently, there is no appropriate remedy to the violation of this article. So, there must be some new legislation, or the Supreme Court must give new ruling regarding the remedy of this violation.
—The writer is contributing columnist, based in Lahore.
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