A president’s assent

August 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.