Postponement of Elections in Punjab

The SC will have to sort out the issue

The Election of Pakistan (ECP) while postponing elections in Punjab maintained that it was doing so in view of the security situation and non-availability of personnel from the security agency for deployment at the polling stations due to which it was not possible to organize elections honestly, fairly in a peaceful manner and in accordance with the constitution and law.

In its notification it said that the postponement has been done in exercise of the powers conferred upon it by Article 218(3), read with Section 58 and Section 8(c) of the Elections Act, 2017, “the commission hereby withdraws the [earlier] election programme […] and fresh schedule will be issued in due course of time with poll date on October 8.”

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Perhaps it would be pertinent to look at what the clause of the Constitution and sections of the Election Act 2017 stipulate under which the ECP took this decision. Article 218(3) of the constitution says “it shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the elections is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against.”

Section 58 of Election Act 2017 says “Notwithstanding anything contained in section 57, the Commission may, at any time after the issue of the notification under sub-section (1) of that section, make such alterations in the Election Programme announced in that notification for the different stages of the election or may issue a fresh Election Programme as may, in its opinion to be recorded in writing, be necessary for the purposes of this Act:” Section 8(c) says” Election commission may issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the Rules.

As is clear from the text of the Article 218(3) and Section 8 (c) and 58 of the Elections Act the ECP is supposed to hold elections honestly, justly and fairly. However, it can change the announced elections schedule if it feels that holding elections as required under Article 218(3) was not possible by recording the reasons for doing so.

The reaction of the PTI stems from purely political considerations. Unfortunately the party is used to looking at the confronting issues only through the prism of its own political agenda irrespective of the fact whether it serves or undermines the national interests.

I think the ECP had no choice other than postponing the elections when the security personnel were not available to perform duties at the polling stations due to which it was simply not possible to hold just and fair elections. The overall security situation in the province, as per the briefing given to the ECP by Chief Secretary and IG Punjab, was also not conducive to conducting the election. It is pertinent to point out that the ECP depends on the provincial administrations and security agencies for conducting free, fair and just election and in the absence of their support the purpose of the constitution and Election Act cannot be fulfilled.

The postponement has not been well received by the PTI and the Supreme Court Bar Association who maintain that the ECP has acted in an unconstitutional manner and is also guilty of contempt of court as the Supreme Court in its decision had held that the elections would be held within 90 days.  Article 224(2) does stipulates “When the National Assembly or a provincial Assembly is dissolved a general election to the Assembly shall be held within a period of ninety days after the dissolution”

However it is worth pointing out that though Article 224(2) requires the elections to be held within 90 days, if they cannot be held within that period for any valid and pressing reasons it does not constitute breach of the Constitution. Such circumstances are covered by Article 254 of the Constitution which reiterates “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”

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Now coming to the argument that the action taken by the ECP is against the Supreme Court decision regarding the date of elections, I am afraid those who prefer this argument probably have not read the quoted decision properly. Para 14 of the judgment says that the ECP would act in conformity with sections 57(1) and 58 of the Election Act 2017.  I have already quoted the text of section 58 above according to which the ECP can change the given date. A look at section 57(1) of the Election Act 2017 as mentioned in the SC decision is also relevant to be quoted. It says “The President shall announce the date or dates of the general elections after consultation with the Commission.”

The ECP has fully complied with the SC decision. It did consult the President who announced the date of election as required under section 57(1). However when it did not receive the required support from security institutions to perform duty at the polling stations it justifiably postponed the elections in terms of the powers conferred on it by section 58 of the Election Act 2017. Therefore the argument that ECP action is a breach of the SC decision and constitutes contempt of court is not valid.

Precedents do exist when elections had to be postponed on two occasions due to the prevailing situations which were not conducive to conducting the elections. Article 54 of the Constitution does make provision for such eventuality.  In the light of the above submissions it can be safely inferred that the ECP is neither guilty of breach of the constitution nor defiance of the court decision.

The reaction of the PTI stems from purely political considerations. Unfortunately the party is used to looking at the confronting issues only through the prism of its own political agenda irrespective of the fact whether it serves or undermines the national interests.

Imran Khan dissolved the two provincial assemblies without any justification. The only reason seemed to create difficulties for the PDM government. The two dissenting judges of the Supreme Court had rightly emphasized the need for ascertaining whether the assemblies were dissolved in conformity with the constitution or not. It is interesting to note that the PTI Chairman and his spokesmen like Fawad Chaudhry had also talked about the possibility of delaying the elections in case the PDM agreed to hold elections for the National Assembly and four provincial assemblies simultaneously somewhere around June or July.

How could it make such a proposal if the elections could not be delayed beyond 90 days and delaying it further meant breach of the constitution? The answer is it did know that it was constitutionally possible to hold the elections beyond 90 days if the circumstances demanded. Its current response is nothing but crass politics.

Malik Muhammad Ashraf
Malik Muhammad Ashraf
Malik Muhammad Ashraf is an academic. He can be contacted at: [email protected].


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