The New Nation - Internet Edition

Hasnat Abdul Hye

Suddenly, the Election Commission appears to be faced with a crisis, though not of the paralysing kind. The Chief Election Commissioner, being a seasoned bureaucrat, said euphemistically that the Commission was in a 'critical stage.' One can easily understand this, given the circumstances. The Commission was lagging behind in respect of some of the milestones announced earlier in the Road Map for election. It has been able to make up for the delay in accomplishing the milestones and was on track to hold the election on 18 December, as announced by the Chief Adviser. The objection by most of the political parties and refusal by a few to be registered under the Representation of the People Order, 2008 have been amicably settled. In this regard, both the Election Commission and the political parties demonstrated commendable understanding and a spirit of accommodation. But the registration of one of the parties has hit a snag as an objection against it has been submitted to the Election Commission. The matter cannot be resolved without giving a hearing to both sides. This is likely to take some time, which will mean that the registration of the party cannot be completed within the stipulated date. However complex, the issue will be resolved one way or the other soon, it is expected. The progress in registering other parties having no similar problem has been slow, making it impossible to meet the deadline on 30 October. Under the circumstances, the deadline for registration of parties will have to be extended, at least by a week.

The Chief Election Commissioner (CEC) attributed the 'critical stage' not only to the objection made against a particular political party. He also had in mind the 3 writ petitions pending before the High Court over the legality of the demarcation of constituencies that was made by the Commission. On 10 July 2008 a gazette notification was published to give effect to the new demarcation of the existing constituencies. Three writ petitions were made before the High Court challenging the authority of the Election Commission to change the constituencies for the purpose of allocating parliamentary seats. One of the petitioners of the writ has submitted to the Court that according to the Constitution only the parliament can bring changes in the constituencies and, as such, the gazette notification issued by the Election Commission should be declared ultra vires. The High Court issued orders staying the action of the Election Commission and asked it to show cause why the interim order should not be ruled as final. The counsel of the Commission argued before the Court that according to Section 8 of the Delimitation of Constituencies Order, 1976 delimitation is in order after a new census. Article 125 of the Constitution has been cited to back the argument that no one can challenge any law relating to delimitation of constituencies. The counsel for the petitioner submitted to the Court that the petitioner did not challenge the Electoral Rules, but the legality of the powers of the Commission to exercise that power. It has been submitted furthermore to the Court that the Constitution has given power to the Election Commission to hold election but not to delimit the existing constituencies. All the three writ petitions that have been made challenging the authority of the Election Commission were heard by the High Court. The Court after hearing both sides on Thursday said that Judgement would be given next Sunday. It may go either way, needless to say.

According to the orders of the High Court, gazette notification issued by the Election Commission regarding demarcation of constituencies was stayed till 6 November 2008. This means that even if the Court's orders go in favour of the Election Commission, it cannot announce the election schedule on 2 November as announced earlier. Taking this reality in view the Commission has now informed that the election schedule will be announced later. In the absence of the operation of the gazette notification, the Commission cannot also publish the electoral rolls against the constituencies delimited. More importantly, if the Commission wants to hold election on the basis of the delimited constituencies, it has to wait for the Court's judgement and if this goes against the Commission the new constituencies will be inapplicable for the next election. In this event, it may be difficult to hold election on 18 December unless the alternative open to the Commission is availed of. One cannot argue about the complexity of legal process that has been unleashed after the writ petitions were submitted. Important constitutional issues have been thrown up by the writ petitions and these required detailed examination and reasonable interpretation. Whatever the urgency, the legal process could not be telescoped.

The Election Commission has to think about the alternatives in case the judgement of the Court goes against it. One way out for it may be to hold election on the basis of the existing constituencies, leaving the delimitation to the next parliament. It may be argued that having made a gazette notification for newly delimited constituencies, the old constituencies are no longer valid. But the operation of the gazette notification of 10 July 2008 having been stayed, the new constituencies cannot have come into existence. According to both commonsense and law, if the new constituencies cannot be given effect to, the old constituencies should prevail. If the Election Commission wants to hold election on 18 December, 2008 as per announcement, this will be the reasonable decision to take. The Court will not have any objection to that and presumably, neither will the petitioners.

The Election Commission may have been in a 'critical stage' due to the writ petitions and the delay in registration of political parties. Come Sunday next, it will know about the outcome of the writ petitions, ending uncertainty and suspense. It will have enough time to complete the remaining formalities for holding the election on 18 December, as scheduled.