No bar on President to use 58-2(b)

LAHORE - There is no constitutional bar on the President on dissolving National Assembly in case impeachment proceedings are initiated against him whereas the same restrictions have been imposed on prime minister and provincial chief ministers. They have been restricted not to advise on dissolution of assemblies after no-confidence resolution is moved against them.

However, the constitutional experts say the president's move to dissolve assembly during the impeachment proceedings would be called on malafide and on this ground his action could be reserved by the Supreme Court. As per constitutional scheme, the President under Article 58-2 (b) can dissolve assembly if a situation has arisen in which the government cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.

The President in case of dissolution of the National Assembly within 15 days of the dissolution would refer the matter to the SC that would decide the reference within 13 days whose decision would be final.

The constitutional experts opine that there is no mentioning of any restriction on the President regarding time, when to use his powers.

They say while it is explicitly mentioned in the Article 58 (1) that the President would dissolve assembly on the advice of prime minister but the PM could not send such advice if a notice of resolution for a vote of no-confidence has been issued against him in the National Assembly.

Likewise, under Article 112 of the Constitution, the Governor would dissolve provincial assembly on the advice of chief minister but a chief minister against whom a no-confidence motion has been initiated in provincial assembly he is barred from sending advice for dissolution of assembly.

In case of provincial assemblies, the governors are vested with same powers as that of the President regarding dissolution of assembly under Article 112 (2) of the Constitution but subject to the prior approval of the President.

Ashtar Ausaf Ali, a senior lawyer was of the view that the President had no right to dissolve assembly after an impeachment resolution is moved against him in the assembly.

Other jurists say the President could send assembly packing at any stage because no constitutional provision is a hurdle in his way, but added that there is a flaw in the Constitution. They say it is for the first time that a president is being impeached and that is why no one had noticed this constitutional flaw ever before.

They suggest that the coalition government must also make amendment in Article (58) to impose a restriction on president's power.

To a query, they say the SC could reverse his decision on the ground of malafide. But at the same time they apprehend that it would be a hard nut to crack for the present SC that had expressed his allegiance to Pervez Musharraf by taking oath under November 3 PCO. They say the circumstances are not favourable for the President to exercise this power. They say public opinion is already against him and apparently he has also no backing of armed forces. They say in case he dissolves assembly and matter goes to the SC the entire business of the government would remain suspended for 45 days that would be a big loss to the country.

The experts also say that if the Parliament fails to impeach the President then it would have no moral ground to remain in existence.