Powers And Privileges Of The President Under The Constitution Of Islamic Republic Of Pakistan

POWERS AND PRIVILEGES OF THE PRESIDENT UNDER THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN POWERS AND PRIVILEGES OF THE PRESIDENT UNDER THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN By Syed Nasir Ali Shah, Former District and Sessions Judge (Punjab) Islamic Republic of Pakistan is a democratic country with parliamentary form of Government. In such a dispensation obviously Prime Minister is Chief Executive of the country and President is ceremonial Head of State. General perception is that the President has to act on the advice of the Prime Minister and has no powers of its own under the Constitution of Islamic Republic of Pakistan (the Constitution). But this is not the whole truth. There is much more to it than meets the eyes. Rather the constitution oscillates between the Prime Minister and the President. Under Article 41(2) of the constitution the President has to be a Muslim of not less than forty five years of age and qualified to be elected as member of the National Assembly. Article 46 supra obligates the Prime Minister to keep the President informed on all matters of internal and foreign policy and on all legislative proposals the Federal Government intends to bring before the Majlis-e-Shoora (Parliament). In Mian Muhammad Nawaz Sharif's case1 it was held that the President as the symbol of the unity of the Federation is entitled to the highest esteem by all the functionaries of the State. Under Article 90 of the constitution the executive authority of the Federation is to be exercised in the name of the President by the Federal Government. Similarly under Article 99 ibid all executive actions of the Federal Government are expressed to be taken in the name of President. And Article 243(2) supra provides that the supreme command of the Armed Forces vests in the President. This does not appear to be without wisdom. Islamic Republic of Pakistan is a Federation. Its different federating units have different and varied demographic calculus and territorial expanse. As such to instill sense of unity in the denizens these powers are exercised in the name of the President who is ceremonial Head of State. Within the scheme of Article 29(3) ibid the President in relation to the affairs of the Federation shall cause to be prepared a report on the observance and implementation of the Principles of Policy. Under Article 45 supra the President has power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. In Abdul Malik and others' case2 it was held that the President enjoys unfettered powers to grant remission in respect of offences and clog stipulated in a piece of subordinate legislation could not abridge such powers of the President. No doubt within the contemplation of Article 48(1) supra in exercise of his functions, the President shall act on and in accordance with the advice of the cabinet or the Prime Minister but according to its proviso the President may require the cabinet, or as the case may be, the Prime Minister to reconsider such advice. In any event within the scheme of Article 48(2) ibid the President shall act in his discretion in respect of any matter in respect of which he is empowered by the constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever. And under clause (5) of Article 48 ibid where the President dissolves the National Assembly he shall appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly; and appoint a care-taker Cabinet. This was expounded by the hon'ble Supreme Court in Al-Jehad's case3. In Justice Qazi Faez Isa's case4 Mr. Justice Faisal Arab in his concurring note (page-188) elaborated the powers of the President as under:- "There are few provisions in the Constitution in which the President can exercise his powers in his own discretion. These are proviso to Article 48(1), Article 48(2), Article 56(2), Article 58(2), Article 75(1)(b), Article 91(7), Article 209(5), Article 232(1) and proviso to Article 232(2)" It may be mentioned en passant that clause 5 of Article 209 supra mentioned above relates to the power of the President to form opinion that a Judge of a Supreme Court or of a High Court may be incapable of performing the duties of his office by reason of physical or mental incapacity; or may have been guilty of misconduct. But in Justice Qazi Faez Isa's case supra in the majority judgment (page 146) clause 5 of Article 209 was interpreted as under:- "that the initial authorization by the President on the advice of PM to commence an investigation against a judge in a complaint falling under Article 209 (5) is a legal requirement for sustaining the validity of a Presidential reference that is ultimately filed with the SCJ" Article 56 ibid empowers the President to address either House or both Houses or send messages to either Houses of the Majlis-e-Shoora (Parliament). Besides, at the commencement of the first session after each general election to the National Assembly and at the commencement of the first session of each year the President shall address both houses assembled together. Under Article 58(2) supra the President is clothed with the authority to dissolve the National Assembly in his discretion where, a vote of no confidence having been passed against the Prime Minister, no other member of the National Assembly commands the confidence of the majority of the members of the National Assembly in accordance with provision of the Constitution. Article 91(7) ibid commands that the Prime Minister shall hold office during the pleasure of the President and if he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly. The President under Article 94 ibid has power to ask the Prime Minister to continue to hold office till his successor enters upon the office of the Prime Minister. The President is also empowered to invoke the Advisory jurisdiction of the Supreme Court if he considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance. (Article-186) Within the scheme of Article 229 ibid the President is empowered to refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the injunctions of Islam. Any Bill to amend the constitution, if passed, requires assent of the President (Article-239). The President has powers to raise and maintain the Military, Navy and Air Force of Pakistan and Reserves of such Forces and to grant commissions in such Forces (Article-243). As provided by Article 248 ibid no criminal proceedings whatsoever can be instituted or continued against the President in any court during his term of office. The President is also empowered to award decorations in recognition of gallantry and meritorious service within the scheme of Article-259 supra. In the scheme of the constitution the role of the President is important and ubiquitous. He deserves, expects and commands respect, dignity and deference from across the board. But being symbol of unity of the Federation his conduct needs to be non-partisan and beyond reproach. Erstwhile Article 58 (2) (b) of the constitution empowering the President to send any elected government packing at his will and whim was contentious, to say the least. On at least four different occasions democratically elected governments became its causalities. It was rightly laid to rest by a consensus amendment to the constitution. No doubt the amendment largely defanged the President but overarching and sobering role of the President cannot be washed away or watered down.