Situationer: Friends, foes concur Alvi committed error of judgment

KARACHI: The president violated his constitutional duty by not announcing the date for the general elections, say legal experts, who are also of the opinion that any action now against this error in judgment or failure to discharge a constitutional duty by the president is highly improbable given that there is no sitting parliament at the moment. 

On Thursday, Senator Kamran Murtaza of the JUI-F addressed the Senate and said that either the president did not understand his duty under Article 48(5) of the constitution or failed to discharge it -- and that a resignation by the president was warranted.

Talking to The News, Supreme Court lawyer Salman Akram Raja says a resignation demand at this moment doesn’t mean much. He says that this issue is now a part of the past since “the only action you can take against the president [in such a situation] is to impeach him. And he can’t be impeached [now] because there is no parliament right now and an impeachment is something a parliament does.”

In any case, says Raja, “as soon as the new parliament is elected, President Arif Alvi will resign because then a new president will be elected as well so there’s really not much that can be done.” Raja does agree that the president “failed to discharge his duty” but adds that the “law ministry had given the president the advice that this was the job of the ECP. This was completely wrong. Under Article 48(5), [fixing a date for election] was his responsibility.”

Asked what defence the president could have had if parliament wanted to impeach him, Raja says that the president could have said that “there was an act of parliament [Election Act] and he was bound by that as much as anyone else. Somebody needed to go to court to have the act of parliament challenged and declared unconstitutional. But since no one went to court and the act remained on the statute books, the president followed the advice of the law ministry. Parliament had enacted a law in violation of Article 48(5) and parliament gave the basis and opportunity to the law ministry to advise the president not to announce a date and wait for the ECP. This would have been his defence”. For Salman Raja, essentially it is not the president alone who is responsible for the date not being announced by him -- “the ECP, the PDM government and the caretaker government are all complicit in the president not giving the date”.

Talking to Shahzeb Khanzada on Thursday night, constitutional lawyer and a senior PTI member Hamid Khan had conceded that “there has been a mistake on the part of the president; when the assemblies were dissolved he should have given a date for the elections. It seems he got confused after the hue and cry about this being the power of the ECP. This was an incorrect view since the Election Act is also subject to the constitution. And Article 48(5) of the constitution makes it clear that it is the job of the president to fix a date for elections. So yes, the president did fail to perform this constitutional duty. However, if the ECP thought it had the right to give a date then it should have done so. I feel the constitution was not adhered to on both ends.”

During Geo’s Capital Talk with Hamid Mir, Barrister Ali Zafar too had said that there “should be a debate on [the president not announcing the date].” But Barrister Zafar followed that up by adding that “instead of fighting about the past, we should look ahead and concentrate on the solution (the election). For the future, it is the responsibility of parliament to ensure this doesn’t happen again. Perhaps through a constitutional amendment they could prescribe a punishment if someone doesn’t adhere to the 60 or 90 day rule”.

On the president violating the constitution, Supreme Court advocate Basil Nabi Malik says, “In terms of Section 57 of the Election Act, 2017, along with the developed jurisprudence of the Supreme Court, it appears that the president was indeed required to announce a date in consultation with the ECP. Failing to do so may be the ground for charging the president with violating the constitution, which in turn is an impeachable offence. However, it is important to note that impeachment generally requires a joint sitting of the National Assembly and Senate, and in the instant case, the National Assembly already stands dissolved”.

For high court advocate Abuzar Salman Khan Niazi, the matter of the president’s duty is simple. He says it was the “duty of the president under the constitution to provide the date of election within 90 days after dissolution of assembly.” Niazi says that when “there is violation of the constitution, that, in my view, amounts to misconduct — which is a ground for impeachment. President Alvi should have resigned if he was not able to give a date of election or was pressurised [not to]. Had the president given the date and had the ECP then not adhered to it, that would have fallen on the ECP and the government but the president didn’t even give a date. So this was a violation by the president who was not guided properly by the ECP and the federal government.”

There is a more sympathetic view regarding how President Alvi chose to discharge his constitutional duty. Lawyer Abdul Moiz Jaferii says that in fact “the president is perhaps the only person in the entire election delay saga who tried to do his job. He was rebuffed and conspired against, and the CEC even wrote back to him saying meeting him for an electoral date consultation was unnecessary.”

According to Jaferii, it was this “deliberate misreading of the constitution by the then government as well as its law officers, which allowed for the Supreme Court’s commands and the president’s wishes to be ignored. To now try to pin this tail upon the president would perhaps be too farcical even for our clown show.”

Barrister Rida Hosain sums up the whole situation thus: “Article 48(5) of the constitution states that where the president dissolves the National Assembly, the president shall appoint a date for general elections. In the present case, the president dissolved the National Assembly on the advice of former prime minister Shehbaz Sharif. Consequently, the authority to appoint the election date vested with the president. On September 13, the president wrote a letter stating that the elections “should be held” by November 6, 2023. A letter stating when the elections “should be” falls short of appointing a date. Article 48(5) states that the president “shall” appoint a date within ninety days – it is a clear and mandatory constitutional command. A vague letter simply proposing a time frame cannot qualify as compliance with this command.” She is also of the opinion that the “incorrect legal interpretation by the ECP ultimately led to further unnecessary litigation (at the expense of the ninety-day time limit).”