Article by Zain Shaikh
“Amend and Win”
1. In 2007, before the election of General Pervez Musharraf as President of Pakistan, constitutional experts were embroiled in a controversial debate on whether the same National and Provisional Assemblies can elect a new President for a second five (5) year term. In order to appreciate the nature of the controversy, a review of the relevant provisions of the Constitution is necessary:
a). According to Article 52 of the Constitution the (5) five year term of each assembly begins from the date of the first meeting of the assembly concerned. As the elections to the National and Provisional Assemblies were held on the 10th of October, 2002 and the National Assembly first met on the 15th of November, 2002, the term of the National Assembly expired on the 15th of November, 2007. The exact date of the expiry of the terms of the Provincial Assemblies can be determined by ascertaining the date of first meeting of each assembly.
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b). Pursuant to Article 224 to the Constitution, entitled “Time of Election and Bye-election,” the general elections must be held within a period of sixty (60) days “following” the expiry of the terms of assemblies.
In this case, as the assemblies met on or after the 15th of November, 2002, the general elections were required to be held, after the 15th of November, 2007 and on or before the 15th of January, 2008.
c). New Clause (7) of Article 41 granted the Chief Executive absolute discretion in determining the date of relinquishment of his office and assumption of office of the President of Pakistan.Pervez Musharraf assumed the office of President of Pakistan on 16th of November, 2002. Therefore the President’s term of office expired on the 16th of November, 2007.
d). Article 41(4) provides that the “Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office”. Therefore the election of President was required to be held not later than the 15th of October, 2007.
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According to normal parliamentary practice and the scheme of elections envisaged by the Constitution of 1973, the elections of the new Majlis-e-Shoora and Provincial Assemblies are to be held first and the President is to be elected by the members of the new assemblies.
In the circumstances, whereas the Elections of the assemblies could only be held some time after the 15th of November, 2007, and before the 15th of January, 2008, as stated in paragraph (b) hereinabove, the election of President, had to be held before the 15th of October, 2007, as stated in paragraph (d) hereinabove.
Due to the distortions created in the periods of constitutional deviation and the normal time required for announcement of the official results and the first separate meetings of the assemblies, it was obvious that it would not be possible to follow the normal parliamentary time line for the election of the President in 2007.
It seems that this Constitutional impasse was preconceived at the time of the passage of the Constitution (Seventeenth Amendment) Act, 2003. An amendment was made in Article
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224 of the Constitution for which there is no justification whatsoever in a Parliamentary Form of Government.
Prior to the said amendment, Clause (1) of Article 224 of the Constitution, provided as follows :
“A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately “preceding” the day on which the term of the assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.”
The Legal Frame Work Order, 2002 substituted the word“following” in place of the word “preceding”, in clause (1) of Article 224.
The term of the assemblies was thus indirectly increased by upto two months. In countries that follow the Parliamentary Form of Government elections to assemblies are normally held within a certain period “preceding” the expiry of the term of the assemblies. This deviation from the basic feature of parliamentary democracy and the Constitution of
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1973 as in force on the12th of October, 1999,is unconstitutional and was intended to serve the collateral and mala fide purpose of securing the election of President by the previous assemblies rather then by newly elected assemblies.
The collateral purpose of the said amendment is also evident from the freudian lapse of the draftsman in not deleting the following words “and the results of the election shall be declared not later than fourteen days before that day” appearing at the end of Clause (1) of Article 224, (i.e, before the date of expiry of the term of the assemblies). The said words have now become redundant, as the general elections after the said amendment are to be held within sixty (60) days “following” the expiry of the term of the assemblies and not prior to the expiry of the term.
If this amendment is retained, every five years the nation will be faced with the same constitutional dilemma. In the circumstances, it is suggested that the parliamentarians should definitely consider repealing the amendment to Article 224 (1) of the Constitution, as part of the proposed constitutional package.
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