Can president fix election date?

KARACHI: Under Article 48(5), the president has the right to fix the date of election, say legal experts. A contrary view, though, feels that the president does not have suo-motu power under Article 48(5) and is bound to follow the PM’s advice.

In a letter to Chief Election Commissioner Sikander Sultan Raja, President Alvi has said that under Article 48(5) of the constitution he is liable to appoint a date for the elections no later than 90 days from the date of the dissolution of the assembly.Not everyone is convinced of that. PILDAT President Ahmed Bilal Mehboob says that while “the president is using the powers given to him under Article 48 to set the date of elections, it is important to note that the president doesn’t have this as a suo-motu power. The president is obligated to the advice given by the prime minister”. According to Mehboob, “under Article 48(5), the president does have the right to fix the election date.” He mentions that this is so even though “there has been an amendment in the law (Election Act), under which the ECP has this right, nevertheless that is a law and this is the constitution [Art 48(5)] so its stature is higher than legislation.”Mehboob says that even though “the president can give the date, in my opinion he cannot do this as suo-motu action and needs to do this on the advice of the prime minister.” He adds that the fixing of the date of election “is not part of the discretionary powers of the president.”On the contrary, former president of the Sindh High Court Bar Association Barrister Salahuddin Ahmed says that the “president does have [the] constitutional right to fix the election date” and that Article 48(5) has used the words: “notwithstanding anything in 48 (1)” regarding prime ministerial advice.Supreme Court advocate Salman Raja explains Salahuddin Ahmed’s opinion on the matter by agreeing that Article 48(5) is what helps clarify the matter: “Article 48(5) is what expressly excludes Article 48(1). It is Article 48(1) that said the president will act on the advice of the prime minister. But Article 48(5) says that the president can fix the date of elections ‘notwithstanding anything in Article 48(1).” Raja too is of the view that the Election Act amendment cannot override the constitution. Per the constitution, he says, the president can fix the date of the election and the ECP should be following that -- unless they go to court.