by Iftikhar A. Khan in Dawn, 22 Dec 2020
• Asserts it is commission’s responsibility to conduct elections
• Says last four to five Senate elections have been held in first week of March
ISLAMABAD: The Election Commission of Pakistan (ECP) broke its silence on Monday on a controversy over the date of Senate election 2021, asserting that it was the commission’s constitutional and legal responsibility to conduct polls for the upper house of parliament.
The ECP opened up almost a week after the federal government’s announcement about holding of the Senate election in February instead of March sparked a debate on as to who has the final authority to take a decision to this effect.
Various statements were issued over the Senate election and certain opinions were expressed over the responsibilities of the ECP, which created ambiguity, the commission stated.
“Till now, the commission had issued no statement, but now it feels there is a need to provide legal and constitutional clarity over the matter,” the statement reads.
The ECP said half of the Senate members would retire on March 11, 2021 after completing their six-year term.
It explained that elections could not be held before 30-days preceding the expiry of the term on the seats that would fall vacant, under Article 224(3) of the Constitution. The Article reads: “An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur.”
This means elections on vacant Senate seats cannot be held before February 10, 2021, the ECP said, while pointing out that last four to five Senate elections had been held in the first week of March.
“This time too, the ECP will announce the date for the Senate elections at a suitable time, according to the law and Constitution,” it declared.
Conducting the Senate election is the constitutional and legal responsibility of the Election Commission of Pakistan under articles 218 (3) and 224 (3) of the Constitution and Section 107 of the Election Act, 2017.
On Dec 15, the Pakistan Tehreek-i-Insaf (PTI) government decided to hold the Senate election early, apparently to upset the opposition’s Pakistan Democratic Movement (PDM) plan to oust the government by resigning from the national and provincial assemblies. However, the cabinet decision stirred the debate if the government had constitutional legitimacy to change the Senate election date when the polls cannot be held more than a month before the outgoing senators’ term ends nor can they be delayed beyond the expiry of such term.
Senate election schedule is issued by the ECP every three years. Under the election law, the commission is the sole authority to organise the polls. The process is spread over different phases and takes about a month to conclude.
During the last Senate election in 2018, the ECP issued its schedule on Feb 2 and election was held on March 3 across four provincial assemblies. Separate schedules were issued to elect two senators from Islamabad (one general seat and one reserved seat for technocrats) and four senators from the erstwhile Fata on Feb 4 and Feb 6, respectively.
Earlier in 2015, too, March 3 was set as the polling day for which a notification was issued on Jan 19. Similarly in 2012, the ECP had issued a schedule on Jan 12 for the March 2 Senate poll.
While this time the ECP has so far not specified as to when it will conduct the upcoming Senate election, it announced two schedules for by-polls on two national and five provincial assembly seats in an exercise meant to complete the electoral college for the Senate lectionary.
According to the schedule, elections on two provincial assembly seats from Sindh and one from Balochistan Assembly will be held on February 16 while elections on one national and provincial assembly seat each in Punjab and Khyber Pakhtunkhwa (KP) will be held on February 19.
A constitutional expert when contacted told Dawn that the apex court in some judgements defined the expression ‘election’ as a process that starts from the issuance of a schedule and culminates on the poll day.
He was of the opinion that a schedule for the Senate election could not be issued before February 10. He said the whole process required minimum around 20 days for all the stages including public notice inviting nominations, submission and scrutiny of nomination papers and appeals against their acceptance or rejection.
He said the polls for the Senate were therefore not possible before the first week of March if the law was to be strictly followed.
The last set of by-polls that will complete the electoral college for the Senate election was to be held on February 19, he explained, adding that the process involving consolidation of results and notification of victory after submission of details of election expenses normally takes around a week.
The provincial assembly seats where by by-elections are to be held on February 16 include PS-88 (Malir), PS-43 (Sanghar) and PB-20 (Pishin). The two National Assembly constituencies where by-elections are to be held on February 19 are NA-75 (Sialkot) and NA-45 (Kurram Agency). On the same day, by-polls for two provincial assembly seats, PP-51 (Gujranwala) in Punjab and PK-63 (Nowshera) in KP, will be conducted.
Most of these seats had fallen vacant due to the death of the lawmakers who had contracted coronavirus.
Two provincial assembly seats one each from Punjab and KP fell vacant on June 3 when two lawmakers died after contracting coronavirus. PTI MPA Mian Jamsheduddin Kakakhel from PK-63 (Nowshera) and PML-N MPA Shaukat Manzoor Cheema from PP-51 (Gujranwala) passed away after being on ventilator for a few days.
PS-88 Malir seat fell vacant on June 2 on the demise of provincial minister for human settlement Ghulam Murtaza Baloch, who had contracted coronavirus. Also, PS-43 Sanghar seat fell vacant last month on the death of PPP leader Jam Madad Ali from coronavirus.
The Balochistan Assembly seat of PB-20 (Pishin) fell vacant after former governor and former deputy chairman of Senate Syed Fazal Agha succumbed to coronavirus on May 20.
Also, the National Assembly seats of NA-75 Sialkot and NA-45 Kurram have been lying vacant for several months. PML-N lawmaker from Sialkot Syed Iftikharul Hassan breathed his last on August 2, while Jamiat Ulema-i-Islam-Fazl lawmaker Munir Khan Orakzai from Kurram died on June 2, just days after recovering from coronavirus.
https://www.dawn.com/news/1597148/ecp-breaks-silence-over-senate-polls-controversy
