A president’s assent

Adeel Shahid Karim
Tuesday, Aug 29, 2023

President Dr Arif Alvi sparked national controversy when he took to social media to declare that he never signed the Official Secrets (Amendment) Bill and the Pakistan Army (Amendment) Bill.

In his statement, the president denied having given assent to the bills, and shifted the blame onto his staff, who had apparently failed to return the said documents to parliament within the stipulated 10-day reconsideration time frame provided under the constitution.

The caretaker law minister was quick to respond. Holding up a copy of the constitution during his press conference, he unequivocally declared that the bills had become law upon reaching maturity of the 10-day period required for presidential assent. Yet, speaking entirely from a legal point of view, the answer to this proposition may not be quite so simple.

Let’s begin at the start of the legislative process. The constitution provides that a bill may originate in either House – the Senate or the National Assembly – of parliament. If the House where the bill originated passes it, it must then be presented before the other House. The other House may pass the bill, amend, or reject it outright. The constitution does confer further instructions in all three of these circumstances, but our focus today just pertains to the first one, where the bill has been passed by both the Houses and presented to the president for assent.

As per Article 75 of the constitution, the president shall have 10 days within which to either assent to the bill or return it to the Majlis-e-Shura (parliament) requesting that the bill (or any specified provision thereof) be reconsidered or that a specific amendment be added. The said article is silent in case neither of the above choices are made.

However, Article 75(2) does provide a scenario wherein presidential assent may not be expressly required. If the president were to opt for the second option and return a bill to the Majlis-e-Shura, it can be reconsidered in a joint sitting and if passed, with or without an amendment by a majority of both Houses (present and voting), it is accepted as law. The bill is then presented to the president one more time, with 10 days to give his or her assent, beyond which assent is assumed.

In this current situation that we are faced with, the president did not technically choose an option as the 10-day period lapsed. Does that mean that the bills are now law, as suggested by our law minister? The constitution reminds us that the president is a constituent part of the law-making process, and his/her assent, given or deemed to have been given, is absolutely necessary for a bill to become law. This is what Article 75, clause (3), of the constitution enacts: “When the president has assented to a bill, it shall become law and be called an Act of Majlis-e-Shura (parliament).”

The concept of presidential assent was adopted from the British, and as far as English law is concerned, there has never been, and cannot be any doubt that a bill cannot become a law in the absence of royal assent. The Pakistan Federal Court (now the Supreme Court) in the infamous Molvi Tamizuddin Khan Case, 1955, held that the assent of the governor-general is necessary to all legislations by the legislature of the domain, and without such an assent no bill can become law and, consequently, such a law cannot be enforced by the courts.

The president has limited powers under our constitution, but this might be the crux of his role: to hold back the brazen, politicized passing of bills in parliament. This constitutional duty cannot and should not be brushed aside so easily.

If the president says he never gave assent to the bills in question, then the Supreme Court must give this statement the deference his office demands. As discussed, without express or deemed assent from the president, these bills are merely drafts. They cannot be imposed on the public (not just yet) and the courts cannot claim jurisdiction against them.

The caretaker setup need not forget that they too owe their existence to the constitution and, therefore, must respect the legislative process. To disregard the duty bestowed upon the office of the president by that very constitution is a conundrum against their own legitimacy.

The writer is a Lahore-based lawyer.