How a partisan president can create legislative hurdles for the new PM

With President Arif Alvi seemingly opting out of his constitutional duties with the new government, there are questions as to what extent he can pose a challenge to the working of the Shehbaz Sharif-led coalition government.

Barrister Salahuddin Ahmed says that: "The rules of business set out all the matters which are done on orders of the president — on the advice of the PM. They also set out the ones which he does on his own (appointment of caretaker and dissolution of assemblies). If the president starts refusing the advice of the PM, state machinery would quickly grind to a halt."

Should he choose to, the president can essentially delay matters for the government. Constitutional lawyer Salman Akram Raja says: "In case of appointments such as that of the governor, the president can sit on the advice given by the PM for 15 days. Then he can send it back for reconsideration; when he gets that back he can sit on it again for 10 days — so overall he can delay the appointment of a position like the governor for around 25-26 days."

Constitutionally, the president of Pakistan also has a role in legislation, since no bill passed by parliament can become a law unless the president gives his assent to it. Raja says that there is a danger of legislative delay if the president opts to pose hurdles for a sitting government.

"He can delay [a bill] by not signing it for 10 days and in case of laws other than money bills [which can only be delayed 20 days after which they are deemed signed by the president], he can send the bill back to parliament which then has to call a joint session, pass it [again] with a simple majority and send it back to him. Convening the joint session would take time as would any speeches in the session, or any filibustering by PTI senators, and once the bill has passed the president again has 10 days to sign it. In total, then, the president will have delayed one piece of legislation by 30-35 days."

In the case of the current crisis surrounding the status of Punjab Governor Umar Sarfaraz Cheema, whose removal from office has been advised by Prime Minister Shehbaz Sharif, the president is said to have told the Punjab governor to continue to serve till a decision on his removal is taken. Ironically, the PTI government had removed former Punjab governor Chaudhry Sarwar and appointed Cheema — all in one day. The president had signed off on the appointment.

According to Pildat president Ahmed Bilal Mehboob: "If someone really decides not to care about the norms and rules, and the spirit of the Constitution, then he [president] can create a lot of hurdles for the government. In the case of the Punjab governor, a plain reading of the Constitution tells us that the president can seek clarification on the advice [of the PM], and delay the appointment for as long as 25-26 days for something as urgent as the appointment of a governor."

Salman Raja feels the delay in the appointment of the Punjab governor can go as long as 25-26 days for the matter of removing the current governor, then another 25-26 days in settling the appointment of a new governor. "And till such time as the new governor is appointed the speaker of the provincial assembly is appointed as acting governor. Now in Punjab, the speaker is Pervaiz Elahi. Of course, the House can remove the speaker via a no-confidence vote."

Normally, in a case where the president is not from the party or parties that make up the government, there is the option of impeachment. Out of the three constitutional grounds for impeachment of a president in Pakistan — mentally or physically incapable of continuing in office, gross misconduct, violation of the Constitution — Salman Raja says a case could be made for violation of the Constitution but the government's numbers are not enough for impeachment. Impeachment requires a two-thirds majority, which the coalition government falls short of by around 25 or so votes.

There is another way — going to the court to seek resolution. Ahmed Bilal Mehboob says that if the president refuses to perform a constitutional duty such as administering an oath himself or delegating someone else to administer it then "the court seems to be the only way this can be legally resolved. [It must be understood that] giving oath is his constitutional duty. The president doesn't have a lot of duties to perform, but this is one duty he has to perform. If even that he's not willing to do then they [the government] can make a case and approach the Supreme Court. It is very sad that one has to take a case against the head of the state to the court but it is a special situation — and special situations demand special resolutions".

While Salahuddin Ahmed agrees that there is the option to go to court for a writ against the president, he feels that could lead to "another argument about constitutional immunity to the president and whether the court can issue contempt against him — though if his acts are mala fide or alien to the Constitution, it can".

Lawyer and political analyst Reema Omer says "the Supreme Court of Pakistan has repeatedly clarified that since the president is the head of the state, he is obligated to perform his functions 'neutrally and impartially'. The SC has also held that the president is not supposed to engage in politics or support any particular individual, group, or political party."

Reema sums up the ethical dilemma in pursuing a political strategy while holding the office of the president: "President Alvi’s conduct is an affront to this role and a clear violation of the constitutional scheme. It once again illustrates that the Constitution means nothing to the PTI — they are willing to make a mockery of the most fundamental rules of parliamentary democracy even if it just is to create temporary hurdles in the functioning of the new government."

Originally published in The News