JURIST Contributing Editor Ali Khan of Washburn University School of Law says that constitutional questions remaining after the Pakistan Supreme Court's recent ruling that President Pervez Musharraf may contest the upcoming Pakistan presidential election as the Commander-in-Chief of the armed forces are sufficiently significant to warrant a Supreme Court stay of the scheduled October 6 vote…

On September 28, the Pakistan Supreme Court ruled that President Pervez Musharraf may contest the Presidential election as the Commander-in-Chief of the armed forces. This ruling, though constitutionally discomforting and democratically disappointing, does not resolve a more serious constitutional question: whether an outgoing Pakistani electoral college may lawfully elect a President for the next five-year term.

The opposition parties represented in the national Parliament and provincial assemblies are threatening to boycott the poll to undermine legitimacy of the Presidential election. They are also weighing to dissolve the provincial assembly of the Northern Province to further delegitimize the election. All these developments will raise novel constitutional questions. Even if these events do not occur, lawyers will hopefully petition the Supreme Court for temporary injunction against the Presidential election scheduled to be held on October 6.

The Northern Province

If the Northern Province Assembly is dissolved, the Supreme Court must step in to protect the integrity of the electoral college by staying the Presidential election. The Pakistan Constitution furnishes an electoral college that elects the President. The electoral college consists of members of both houses of the national Parliament and members of the four provincial assemblies (Punjab, Sindh, Baluchistan, and the Northern Province).

Provincial assemblies play an important role in the Presidential election. The votes that Presidential candidates obtain in provincial assemblies are not counted but calculated. These votes are calculated according to a mathematical formula to prevent highly populated provinces, such as Punjab and Sindh, with larger assemblies from having a disproportionate share in the election outcome. According to a mathematical formula, a vote in a smaller assembly carries more weight than a vote in a larger assembly. The weight assignment neutralizes the size of the assembly. Thus, each provincial assembly ends up having an equal stake in the presidential election.

If the Northern Province Assembly is dissolved, one fourth of the provincial part of the electoral college will cease to exist, undermining the constitutional architecture under which each province, regardless of its population, must have an equal say in electing the President. Of course, no province may claim a veto to undo the Presidential election. And a provincial assembly's dissolution should be no automatic basis to stay the Presidential election. The argument involving the Northern Province, however, is much more complex than a simple non-participation of its assembly.

Under the circumstances prevailing in Pakistan, the Northern Province is most critical to the peace and security of Pakistan. The Province houses conservative religious forces that for pragmatic reasons must not be alienated. Furthermore, due to its ethnic, linguistic, and geographical proximity with Afghanistan, the Northern Province must be politically engaged, not estranged, to stem violence. The exclusion of the Northern Province from the Presidential election will strengthen the hands of foreign forces, including the Taliban.

The Democratic Argument

Even if the Northern Province Assembly is not dissolved – which will be a politically mature thing to do – the existing electoral college lacks political legitimacy to elect a President for the next five-year term. The election boycott by opposition parties will simply add to the legitimacy conundrum. The existing electoral college will soon complete its full term and stand dissolved in about three months. The general elections for both the national Parliament and provincial assemblies are scheduled to be held in January, 2008.

A Presidential election must represent the current will of the people. A President elected by an outgoing electoral college will have little legitimacy and respect among the newly elected representatives of the people. This lack of legitimacy may weaken the President's efficacy to discharge constitutional duties. A President with doubtful legitimacy at the beginning of a new election cycle is an odd state practice that must not be allowed to happen.

Furthermore, a Presidential election by an outgoing electoral college disrupts the constitutional role of provinces in choosing the President. Although the President elected by an outgoing electoral college may be removed after the general elections, the removal procedures do not require provincial participation. A President may be removed by two-thirds of the total membership of both houses of the national Parliament. The provinces play no constitutional role in removing the President.

The October 6 election will deprive the new provincial assemblies from having any say in the choice of the President. They will have played no role in electing the President because the previous assemblies have already elected a President for them. If the national parliament after the general elections chooses to remove the President, the provincial assemblies will be unable to add their voices in removing or retaining the President because, as stated above, the Constitution assigns them no role in the removal procedure. This complete disabling of the new provincial assemblies from the Presidential election is a serious subversion of the Constitution.

It appears that the lawyers of Pakistan have a constitutional obligation to bring these facts to the notice of the Supreme Court through a procedurally sound constitutional petition. The Supreme Court is under a constitutional obligation to consider these complex matters with due process in a full hearing. Meanwhile, the Court may issue a temporary injunction to stay the Presidential election. This injunction will allow President Musharraf to continue to discharge his duties under the Constitution until a new electoral college comes into being through free and fair elections.

Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.

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