Dr Arif Alvi's conduct as the president of Pakistan is one of the biggest challenges for the new coalition government, which came to power last week on April 11.
The president did not administer the oath to Prime Minister Shehbaz Sharif as he went on a sick leave hours before the ceremony.
Now, the premier has advised him to remove Punjab Governor Omar Cheema under Article 101 of the Constitution. A debate has started whether the president has the discretionary power to reject the PM's advice.
The Pakistan Tehreek-e-Insaf (PTI) lawyers are contending that only the president has the discretionary power to remove the governor of any province. However, several constitutional experts believe that the president is bound to act in accordance with the advice of the cabinet and the PM.
One such expert, Hafiz Ahsaan Ahmad Khokhar, said that after some changes made through the 18th constitutional amendment in Article 48 (1) of the Constitution, the president “is constitutionally bound to act in accordance with the advice of the cabinet and of the PM as the case may be relating to his prescribed constitutional functions and cannot deviate while performing such functions”.
However, the governor of a province under Article 101(4) of the Constitution can resign from his office by writing under his hand addressed to the president of Pakistan.
Khokhar also said that a proviso has also been added in Article 48(1) of the Constitution by prescribing a period of time limit on president that within 15 days of such advice received from the cabinet or the PM, the president may require the cabinet or, as the case may be, the PM to reconsider such advice, either generally or otherwise, and thereafter, the president shall within 10 days act in accordance with the advice tendered after such reconsideration, and he has no further option to delay the matter.
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The lawyer said that the word ‘shall’ has been used by the legislature in Article 48(1) of the Constitution, which means that the president has no choice except to act and perform relating to such constitutional functions.
"The president of Pakistan is performing three types of constitutional and legal functions, such as the constitutional functions on the advice of cabinet or the PM as the case may be, the functions empowered by the Constitution of his discretion and the statutory functions, and the president has no choice or discretion to deviate from any advice of cabinet or PM as the case may be given to him under the Constitution.”
The constitutional expert opined that as per Article 48(4) of the Constitution, the president’s discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, the validity of anything done by the president in his discretion shall not be called into question on any ground whatsoever.
He added that the PM should have sent a summary regarding removal of all governors on the very first day in order to save time. At least 25 days would be required to replace any new governor, he added.
As the apex court is resuming hearing of presidential reference today (Monday), the PM is unable to appoint a new attorney general for Pakistan. At least the PM could have advised the president to withdraw the presidential reference seeking interpretation and scope of Article 63A of the Constitution, he added.
Senior lawyers are wondering why the PML-N was not countering the PTI's anti-judiciary drive. Since his ouster as the PM, “Imran is targeting superior judiciary”.
Lawyers believe that Monday’s hearing on the presidential reference would be significant in order to ascertain whether judges came under pressure due to the PTI’s anti-judiciary drive.
Interestingly, the Supreme Court has already fixed the PTI chief’s petition for hearing along with the presidential reference wherein the party sought lifetime disqualification of defecting lawmakers under Article 63A of the Constitution.
Senior lawyers believe that the PTI leadership’s continuous attack on the judiciary is inviting judges to pass stricture against responsible constitutional functionaries in the detailed judgment wherein the apex court had declared National Assembly speaker ruling as well as dissolution of the assembly contrary to the Constitution.