Are there going to be elections in the next 90 days as, and if postponed under what law? The question which has baffled many constitutional experts, if not multiple politicians and media analysts, who all want to know what will happen; may, as things unfold, decide the future course of our country. The elections (that is, provincial elections) and any delay can only happen in a legal framework, and there are no second guesses that this will be decided in the realm of the Supreme Court.
The starting point is the binding Constitution which is being interpreted by many but this article will analyze it slightly differently. The legal opinion revolves around the idea that the wording of the Constitution is rigid when it comes to the 90–day period after the dissolution of assemblies. The starting point is Article 105 which states that if the provincial assemblies are dissolved the Governor will announce the date for elections in no later than 90 days. The question being, how will a delay be flexed around article 105? This will be challenged and sensing the political temperature it will not be far-fetched to assume that PTI may challenge this issue in the Supreme Court. Hence it should be examined what would be argued in front of the Supreme Court in favor of time extension.
Argument one:- As a constitutional lawyer the first word that strikes me is “appoint” in Article 105. The word “appoint” versus “announcement” must be analyzed as to why the framers of the Constitution chose “appoint” and not “announce”. In the Constitution wherever the word “appoint” comes, it is assigned with a consultation model, that is to say the appointment must be consulted with or made through a process of consultation with someone in that position of authority. Hence within the Constitution there are consultation or advising roles which are assigned. For instance, it is given in the Constitution when someone appoints a minister, or attorney general (as under Article 140), or a Commission ( as under Article 155), or appointment of National Finance Commission (NFC, as under article 160), appointment of auditor general (as under article 168) appointment of Judges of Superior Courts (under article 175 A) all use the word “appoint” and the so called mechanism assumes that any appointment will be done so after consultation with some assigned authority.
Therefore, it may be argued that when the governor “appoints” a caretaker Chief minister after consultation, it is the very spirit of Article 105 that the governor may again consult an authority for fixing the election date and hence explains that any delay comes after the governor “appoints” or announces the next elections. In such a case, it may be the President or even the Election Commission who is the authority, but this will be raised in the Supreme Court at the time of filing such petitions as to who is competent authority for setting the “realistic” election date. How will be so and why is a more technically poised legal question for a later debate.
While Article 224(3) discusses the election timeline in 90 days however some may argue that Article 224(3) does not make it binding. That is to say that elections may be delayed if the Election Commission makes its case that it is unable to deliver the “fair and free” elections on “time” but may only be able to do so if provided with “necessary resources”. The Election Commission may also quote that the PTI is threatening its employees, and PTI does not have the mandate to doubt its ability to conduct such elections, hence all the more reason to delay till these things are rectified.
Argument two:- Under article 235 the President may impose financial emergency in the country or in a province. This argument may be made that in times of financial crisis the resources of the country should not be allocated towards an election and elections should be put on hold till the economic conditions stabilizes. This will need to be justified and again will put tremendous pressure on the Courts to justify how elections can be postponed when the popular vote is out of the assemblies. The morality or equity of fairplay versus the need of the hour will be raised as an argument.
Argument Three:- Article 112 discusses how an assembly may be dissolved, and as a consequence elections are announced, but interestingly article 112 does not discuss the date or any mechanism of setting the timelines of elections. This, some may argue, sets two interesting contrasts: that the 90-day deadline is perhaps not as important as a commitment timeline implying that extension in elections is possible beyond the 90-day period.
Argument Four:- It may be argued that if the Chief Minister wanted elections and knows he would win a majority, then what was the hurry or need to dissolve in the first place and if there is an “administrative” delay as would be claimed by Election Commission, then let it be.
All those past precedents regarding the 90-day deadline for holding elections read with article 105 (as discussed above) revolve mostly around the incidents or times when assemblies were dissolved without involving the Chief Minister. Seldom it happened that the National Assemblies are not dissolved but a Chief Minister voluntarily dissolves the assembly. This is uniquely different and perhaps mirror opposite to the past episodes when the governor did not want to dissolve the assembly while the Chief Minister was eager to do so. In this scenario, it may be argued that if the Chief Minister wanted elections and knew he will win a majority what was the hurry or need to dissolve in the first place.
Argument Reason Five:- The Election Commission pleads its inability to manage elections in 90 days. The possibility of any delay must be understood with the fact that the Election Commission under the constitution and law will conduct the elections, as under Article 218(3) and Article 219 the authority and delegated responsibility to conduct the elections is assigned to the Election Commission.
While Article 224(3) discusses the election timeline in 90 days however some may argue that Article 224(3) does not make it binding. That is to say that elections may be delayed if the Election Commission makes its case that it is unable to deliver the “fair and free” elections on “time” but may only be able to do so if provided with “necessary resources”. The Election Commission may also quote that the PTI is threatening its employees, and PTI does not have the mandate to doubt its ability to conduct such elections, hence all the more reason to delay till these things are rectified.
Whether he courts give in to this line of arguments or not, is yet to be seen.
