KARACHI/ISLAMABAD: The Supreme Court has said that President Arif Alvi should have invoked Article 186 if he wanted the Supreme Court’s advice regarding his power to set a date for elections.
Penned by Chief Justice Qazi Faez Isa, the detailed written judgment in the matter of the petitions regarding early elections was issued on Saturday and lays down the context for the delay in election by pointing to some of the errors, misjudgments and violations that nudged the election beyond the 90-day limit.
The judgment states that when the National Assembly was dissolved on the advice of former prime minister Shehbaz Sharif in August this year, President Arif Alvi was “required to ‘appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the assembly.” This the president did not do.
The Supreme Court judgment also says that the election faced further delay because of the 7th Census, 2023 which had to be followed by the delimitation exercise. According to the SC, the delay in holding the 7th Census and then the delay in notifying it is what has led to the delay in the delimitation exercise -- which the ECP says will now be completed by the end of this month.
There has been a lot of talk on whether President Arif Alvi did or did not fail to discharge his constitutional duty of announcing the date for the next general election. The judgment has spoken of the president’s over-action and inaction in discharging his constitutional duties. Taking a pointed notice of the president choosing to post on X (formerly Twitter) while asking the ECP to respond regarding the date of elections, the SC judgment says: “a message of the president, conveyed through social media (X, formerly Twitter) [had called] for the views of the ECP on the announcement of a date for holding elections. If the said message was that of the president, it leads one to question whether the country can be run on the basis of messaging on social media.”
That is not all. The court has also pointed out that, while the president had in his letter to the ECP in September sought guidance from the superior judiciary, “the only possible avenue for the president to seek the Supreme Court’s opinion was by invoking Article 186 of the constitution” which says: “(1) If, at any time, the president considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the president.”
Establishing that the president did not indeed ask the Supreme Court for advice, the judgment reiterates that this was “the only constitutionally permissible manner for the Supreme Court to provide guidance”, adding that “a matter which should have been dealt with by the president and the ECP was quite unnecessarily brought to this court....it is about time that courts cease to be involved in political disputes...”
Moving further back, the Supreme Court has also taken note of how President Arif Alvi had dissolved the National Assembly when former prime minister Imran Khan faced a vote of no-confidence in April last year. This, says the court’s judgment, was not within the president’s powers since “the constitution clearly mandated that once the requisite number of members had given a notice of a resolution for a vote of no-confidence in the National Assembly, the power to advise dissolution of the National Assembly no longer remained with the prime minister. Therefore, the president could not dissolve the National Assembly. But the constitution was disregarded, triggering a constitutional crisis”.
The Supreme Court judgment continues on the 2022 dissolution matter. On whether there should be consequences for the way the constitution was disregarded at the time, the SC has referred to how one of the SC judges had said in 2022 that constitutional authority “was violated amongst others by the president, PM, the speaker, the deputy speaker and the law minister as the elected representatives of the people were prevented from voting on the resolution and for such blatant transgression of the constitution there must be consequences and the law must take its course.”
Stating that “constitutional office holders must adhere to the constitution” and “when general elections are due they have to be held”, the SC judgment also very specifically says that on April 3, 2022 President Arif Alvi “had dissolved the National Assembly by using a power not vesting in him, while in the present case [the issue of giving a date for the elections] he did not use a power which he did possess.”
There had been a lot of reporting on the chief justice’s remarks in court on Friday regarding restrictions on the media with regard to debate about the coming elections probability. The eventual judgment does not specify any restriction but does talk about the media and Article 19 of the constitution -- saying that “some have construed this freedom as a license to disinform and build a false narrative, and do so to undermine democracy”.
