AT PENPOINT
The getting a date for the Punjab Assembly elections seem to have replaced the getting a date for National Assembly elections as a goal for the PTI. That shows that Imran Khan’s move of getting the Punjab Assembly dissolved does not seem to have worked. Meanwhile, the KP Assembly, equally dissolved, and for the same reason, seems to have escaped attention.
Actually, the plea taken by Punjab Governor Balighud Din, that the Constitution only obliged him to give a date if he had dissolved the Assembly, does not apply to KP Governor Haji Ghulam Ali, who appeared only too willing to act on the CM’s advice to dissolve. Governor Baligh is making a very fine distinction, saying that he had not dissolved the Assembly, which stood automatically dissolved after the advice was issued.
The question then arises how did the Assembly dissolve. One method, outlined in the Constitution, is for the Governor to dissolve, which he can do on the advice of the Chief Minister, or if as a result of an Assembly session, the House is unable to elect a Chief Minister (and that would only happen if all parties abstain in the last one-to-one round of voting), In either event, he is constitutionally bound to give a date for the fresh election.
The other way the House is dissolved is if it comes to the end of its tenure. Exactly five years after it first met after the last general election, it stands dissolved. No politician is allowed to play any role. The CM and the outgoing Opposition Leader consult on the name of the caretaker CM, and if they cannot agree, and nor does a bipartisan House committee, then the decision has to be taken by the Election Commission of Pakistan. In this case, the ECP is supposed to give the date of the new election, which must be within 90 days of the dissolution.
At the moment, with the LHC refusing its subordinate judges to the ECP, it has no Returning Officers, and there will be no one to issue or receive nomination papers even if April 9 is accepted. The ECP can appoint Punjab government officials, but when the PTI rejects the caretaker CM, will it accept his subordinates as ROs? This is just one of the many problems on the path to a free and fair election.
What if the Governor fails to give a date? It should be noticed that, as far as the dissolution is concerned, the Governor is as bound by the CM.s advice as in any other action. In fact, he is even more bound, for the Constitution specifies the consequence of the Governor not acting on the advice received. In the case of other advice, there may be some going back and forth, and there may be an indeterminate time before it is resolved. However, in the case of dissolution, there is only one possible result, that the Assembly be dissolved, and a time for that advice to take effect, no matter what happens. The provision that he can ask for reconsideration of advice does not seem to apply, as the time period for taking effect is much shorter.
Does the Constitution contemplate him obeying the CM’s advice? That vis more doubtful. He has two things to do on receiving advice to dissolve, apart from the dissolution itself: set a date, and appoint a caretaker government. The Constitution goes into some detail on the latter, but says nothing about the former. Obviously, any advice on the caretaker CM would be ultra vires the Constitution, but what about if the CM was to give an election date?
Perhaps there might be guidance to be got from Westminster, the model for parliamentary systems. Pakistan is not a true Westminster system, for it is a federal system, and the Assemblies concerned are provincial. It was argued that the chief executive’s authority to advise a dissolution was as a delegate of the Assembly. It might also be remembered that, by advising dissolution, the CM is risking his political career, his joh, his very seat in a future House. Clearly, no one will take such a decision lightly. There has been some speculation about the justification for such a decision, but that is perhaps meaningless, as the CM needs give no reasons for his advice. It could be argued that he should give a date in his advice letter, but the Constitution is quiet on that point. In Westminster, while Parliament is normally allowed to run to near full term, Parliament is usually dissolved a little earlier, so as to allow the PM to set the date he wants. Going by this, the CM should have the choice of date, not the Governor, what with the National Assembly remaining intact.
If Ch Pervez Elahi was to give a date now, it might be covered under Article 224, which protects any otherwise valid action from being challenged if performed late. That is also being mentioned as a possible justification for a delay in the provincial polls.
Actually, it is worth remembering that pre-Independence India consisted of a number of provinces, with the central government coming later. Indeed, the office of Governor-General, later also the Viceroy, was given to a provincial Governor, the Governor of what was the Calcutta Presidency. Dyarchic provincial governments were introduced, under ‘native’ elected ministers, but the central government remained firmly the preserve of the Raj. It was not until after the 1946 elections, when it was clear that India was heading for Independence and probably Partition, that ‘natives’ were allowed to take central ministries.
A the same time, the Lahore High Court’s order to the ECP has so far not been obeyed. President Alvi, baulked of a meeting with the ECP, has announced an election date, April 9. President Alvi may regard himself as a partyman, but the LHC might like to revisit the US Supreme Court’s 1803 decision in Marbiry vs Madison. The case is most famous because the Court struck down certain provisions of the Judicature Act, thus ousting its own jurisdiction, as being ultra vires the Constitution.
Briefly, President John Adams hd lost the 1800 presidential election, but had appointed a number of judges and justices of the peace before Thomas Jefferson’s inauguration. However, not all could receive their appointments, including William Marbury. The new President told his Secretary of State not to issue any more appointments. Marbury went to Court, and if the Act been allowed to stand, got his judgement. However, the Court decided that the part of the Judicature Act enabling it to hear the case was ultra vires of the Constitution, and to be struck down. Marbury lost the case.
The case is supposed to have established the power of courts to perform judicial review, and strike down any laws it deems unconstitutional. However, the Supreme Court had another concern. It knew that if it ordered the Secretary of State, James Madison, to issue Marbury’s appointment letter, it would be disobeyed. The Supreme Court wanted to issue an order that would be obeyed, and it did.
Both the LHC and the President should hope that the ECP has not learned the wrong lessons from its defiance of the Islamabad High Court’s order for holding Islamabad local elections, and the fact that nothing happened to it. If one constitutional body gets in the habit of disobeying court orders, will others be far behind? And if organs of state start ignoring the courts, will individuals refrain?
Now that the matter has been taken to the courts, the initiative has once again passed out vof the hands of political forces. Once again, politicians have left someone else to clean up the mess they created. Elections do seem to be the only way out, but thyere are practical difficulties to be overcome.
At the moment, with the LHC refusing its subordinate judges to the ECP, it has no Returning Officers, and there will be no one to issue or receive nomination papers even if April 9 is accepted. The ECP can appoint Punjab government officials, but when the PTI rejects the caretaker CM, will it accept his subordinates as ROs? This is just one of the many problems on the path to a free and fair election.
