Did president abdicate constitutional duty?

KARACHI: Legal minds in the country are divided over who gets to fix the date of the general elections. While most legal experts are of the view that President Alvi has shirked his constitutional duty of announcing an election date, there is another view that the ECP is the institution that gets to decide when and how elections are to be held.

According to constitutional lawyer Usama Khawar “at the core of the question of who has the authority to declare the date for the impending general elections is the collision between the president’s constitutional powers and the mandate of the ECP”.

Talking to The News, Supreme Court advocate Salma Raja says that this was a “dereliction of duty by the president; and he just walked away from this duty. This was a power vested in him on behalf of the people. Declining to do this is an unconstitutional act”.

On Wednesday, former attorney general Ashtar Ausaf Ali spoke with Geo News and said that: “The president has no mechanism or executive right to fix the election date. Appointing the election date is the job of the ECP.” He added that “the president [also] has no power or executive authority to direct the ECP. The constitution does not use the word direction anywhere”.

His words are echoed by former attorney general Irfan Qadir who told Geo News on Wednesday that: “The president has a whole machinery advising him, he can’t do anything on his own in a parliamentary democracy. His status is ceremonial. It doesn’t mean he gets to enter the ECP’s jurisdiction. This is the sort of confusion the president created when he tweeted about not assenting to the two laws [Official Secrets (Amendment) Bill, 2023, and the Pakistan Army (Amendment) Bill, 2023].

Salman Raja disagrees with this reading: “The constitution is very clear: whether the president dissolves the National Assembly on the advice of the prime minister or whether he dissolves because nobody has majority in the House after a vote of no-confidence -- in both situations it is the president who is dissolving and therefore it is the president who gets to fix the election date under Article 48(5) no later than 90 days. So to allow the ECP and the other stakeholders to sit down and decide the election date is completely wrong. It is a duty he cannot delegate.”

Barrister Rida Hosain also thinks that the president “has a constitutional obligation to appoint a date for general elections to the National Assembly. This is not a discretionary power, it is a duty. A letter which states when elections ‘should be’ held and concludes by stating that ‘guidance’ should be sought from the judiciary falls short of satisfying the requirement under Article 48(5).”

Supreme Court advocate Zahid F Ebrahim tells The News that “President Alvi writing that the ECP may seek guidance from the Supreme Court for a date for elections is a masterclass on empty words. It reminded me of that photograph of yesteryears when Dr Alvi was sitting in a boat being pulled in ankle-deep rain water. No one was fooled. President Alvi has the constitutional authority to announce the date under Article 48(5), but no amount of power can help a man with a weak spine”.

According to Usama Khawar, Wednesday’s letter by the president “undeniably reveals his reluctance to exercise his constitutional authority. Under Article 48(5) of the constitution, the power to announce the election date rests squarely with the president. However, his recent actions, particularly the letter to the CEC, have raised concerns about external pressures and extra-constitutional influences”.

“The president has given the ECP leeway which he couldn’t have done; he allowed an unconstitutional flexibility. He is not supposed to exhort people [to fix the election date]; he’s there to fix the date [himself]”, says Salman Raja. His argument is explained further by Rida Hosain who says that the “text of the constitution clearly states that when the president dissolves the National Assembly, the president shall appoint a date for general elections. In the instant case, President Alvi dissolved the National Assembly on the prime minister’s advice. However, the president does not have the express authority to appoint the election date if the president fails to dissolve the National Assembly on the prime minister’s advice, and the term of the National Assembly expires. If President Alvi did not act on Shehbaz Sharif’s advice and the term expired, the case would have been different.”

Does this matter now end up in the Supreme Court? Salman Raja says that “the president has already spent 34 days not giving an election date. Now if someone goes to the Supreme Court, and the court says the date has to be fixed, it will send it back to the president asking him to fix the date -- then what will he do?” Raja explains the math: “the minimum period required to hold the election is 54 days. If the elections were to be announced today (Sep 14), we would have 54 days before Nov 6 to carry out the essential steps to hold the election under the Election Act. So now it’s clear that the 90-day limit will not be met. If the court were to entertain a petition, that would clearly take time and the date would go beyond the 90-day limit.”

Usama Khawar feels that “This ambiguity in the president’s stance has not only complicated the matter but has also shifted the responsibility onto the judiciary, specifically the Supreme Court”, adding that this is a “move that risks judicializing our political processes, potentially placing the incoming Chief Justice Qazi Faez Isa in a precarious position”.

For Barrister Rida, “This matter was always destined to end up in the courts. As has happened too often, the judges will ultimately decide the fate of the elections.”

Writing on X (formerly Twitter), lawyer Reema Omer compares President Alvi’s announcement of a date for the Punjab and Khyber Pakhtunkhwa elections with the president’s Wednesday letter saying that “President Alvi merely points out the latest possible date for elections to the NA (when he clearly has the constitutional obligation to appoint a date for elections within 90 days of dissolution). This is no ‘appointment’ or ‘announcement’ by any stretch”.

Omer also says that the “operative part” of the president’s letter is where he has “suggested ECP, governments, political parties fight out election date in the SC because he doesn’t have what it takes to fulfil his constitutional obligation. The mention of 6 Nov as [the] latest election date is a red herring”.

Talking to Geo News on Wednesday, PILDAT President Ahmed Bilal Mehboob said he was “quite perplexed to read such a confusing -- and unnecessary -- letter by someone occupying the office of the presidency. The letter says nothing except asking the ECP to turn to the superior judiciary re the election date and to consult with the provincial governments and political parties regarding this issue. “ According to Mehboob, “I feel this letter is a result of the president feeling the pressure of his party [PTI].” Mehboob says the president seems to have taken a middle-road approach: “not giving an election date but also writing a letter so he can say he did something.” He adds that “the president did not have authority under Article 48 since the assembly was not dissolved under Article 58(2)”.