President is the constitutional head of the state. Since Pakistan is a federation comprising of the provinces, federal capital and such other states and territories as are or may be included in Pakistan by accession or otherwise, the President represents the unity of the federal republic.
President as the symbol of the unity of the Federation is entitled to the highest respect and esteem by all the functionaries of the State, but this respect and esteem will be forthcoming if he conducts himself with utmost impartiality and neutrality, that he keeps himself entirely aloof from party politics and does not give the impression to any one that he is siding with one faction or working against the other.
President is the head of the State, the responsibility of administration of State rests with Prime Minister. Under article 48 of the Constitution, President is bound to act on and in accordance with the advice of Cabinet or Prime Minister. Therefore, every order of the President requires for its validity the counter signature of Prime Minister. Powers and functions of the President under the Constitution of Pakistan can be discussed as follows:
Power to grant pardon
Under article 45 the President has the right to give pardons, reprieves, and respites, as well as to remit, suspend, or commute any sentence passed by any court, tribunal, or other authority.
Pardon: to pardon someone who has been convicted of a crime, waiving any remaining penalties or punishments and prohibiting the offender from being prosecuted again for the offence for which the pardon was granted.
Reprieve: “reprieve” refers to a temporary suspension or delay in the implementation of a criminal punishment ordered by the court. The implementation of the sentence is postponed during the reprieve period. However, this does not mean that the sentence and its legal consequences are no longer valid. The criminal sentence will be carried out as ordered by the court once the reprieve expires.
Respite: Respite is the act of reprieving. It also means to defer, suspend or postpone anything, such as the execution of a sentence.
Remit: means to reduce the length of a sentence. For example, a ten-year prison sentence could be reduced to five years.
From consequential point of view there is little difference between respite and remit. In both the severity of sentences is reduced.
Commute: Commutation means reducing severity of the sentence or substituting it with a lighter one. In other words, it is the substitution of a sentence imposed by a court by a judicial act, by a sentence proposed by a specific executive functionary by an executive act. For example a death sentence could be reduced to or substituted with life in prison.
Comparison of Section 401CrPC with Article 45 of the Constitution
Concept of power and considerations to be applied for exercise of such powers in the two provisions are different and distinguishable from each other. In case of mercy petition addressed to provincial government in terms of section 402 CrPC the provincial government to act within the tight jacket of section 401 (2) of CrPC. On the other hand, the Power held by the President under article 45 is totally independent and discretionary without any procedural trappings exercisable without any fetters and are in fact the prerogatives of the sovereign which is incorporated in constitutional instruments all over the world.
Authority enjoyed by the President under article 45 of the Constitution being much wider in scope, unbridled and unlimited in sovereign prerogative…. Exercise of power by President on a petition under section 402-A CrPC could not exhaust his authority under article 45. Power under sections 401and 402 CrPC were much inferior and lesser in scope than those enjoyed by him under article 45 of the Constitution which were on much higher pedestal. Petition under article 45 of the Constitution, therefore, was held to be maintainable in spite of the earlier rejection of petition under section 402-A CrPC. (PLD 1985 Kar 610)
Power of the President to grant pardon is not dependent on the rule of Sharia unless it is made law of the land. (PLD 1984 Lah 162)
Provisions of section 401,402, 402-A and 402-B of CrPC are repugnant to Injunctions of Islam being not in consonance with Holy Quran and Sunnah….. Federal Shariat Court, therefore, directed the Federal and Provincial Governments to add proviso to the relevant sections that such power shall be exercisable only if the offences related to Tazir and that too in the public interest as deemed by Sharia. President of Pakistan was also advised to keep in view the injunctions of Islam while exercising the power under article 45 of the Constitution, even in matters of Tazir keeping in view the mandate. Provisions of section 401,402, 402-A and 402-B of CrPC unless amended and altered so as to bring them in conformity with the Injunctions of Islam, shall be void and ceased to be effective as on 1 January, 1992. (PLD 1991FSC 236)
Objectives Resolution has become operative part of the Constitution, and shall have effect accordingly, therefore, the president of Pakistan has no power to commute the death sentences awarded in matter of Hudood, Qisas and Diyat Ordinances…….the powers of pardon in such cases only vest with the heirs of the deceased, therefore the cases in which the death sentences have been awarded, the President has no power to commute, remit or pardon such sentences. However, the cases would be on different footing, if a person has been punished by way of Tazir as in such cases the Head of the State has the power to pardon the offender and that too in public interest. (Mst Sakina Bibi v Federation of Pakistan PLD 1992 Lah. 99)
However against the above judgment of the Lahore High Court an appeal was filed in the Supreme Court of Pakistan (Hakim Khan and others v Government of Pakistan PLD 1992 SC 595). Appeals were allowed and the cases were remanded to the Lahore High Court for reconsideration. Supreme Court held that the courts do not have jurisdiction to declare any law invalid on the ground that of it not being within the limits of Allah Almighty; such a plea would furnish ground for legislative but not judicial review, because the limits to be observed in this regard have been addressed to chosen representatives of the people and not to the courts……article 2-A and article 45 can be harmonized if article 45 is construed that the President has all powers mentioned in article 45 including death sentence cases except those cases wherein death sentence is awarded in murder cases since the Constitution has to be read as a whole and both the articles are substantive and integral part of it. Both are to be give due weightage and acted upon.
President to be kept informed
Article 46 of the Constitution mandates that the Prime Minister must keep the President up informed on all matters of internal and foreign policy, as well as any legislative proposals that the Federal Government intends to present to Majlis-e-Shoora (Parliament).
The Prime Minister’s status is neither inferior nor is less important to that of the President. Except in the matters which are in the sole domain of the President, the President cannot act without the advice of the Prime Minister, whose advice is binding on him by virtue of Article 48(l) of the Constitution. The Prime Minister, in fact, runs the Government and formulates its policies in terms of the Constitution and is accountable to the Parliament. He represents the will of the people. Prior to the Eighth Amendment the Prime Minister was all in all, but after the above amendment the position has changed considerably.
Dissolution of Assembly
Under the Constitution of Pakistan, President is empowered to dissolve the National Assembly of Pakistan. The President can dissolve the National Assembly either on the advice of Prime Minister or under his discretion.
According to article 58, clause 1, if the Prime Minister so advises, the President shall dissolve the National Assembly, and the National Assembly shall, if not dissolved sooner, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised.
However, the Prime Minister cannot advice the dissolution of assembly:
- When a notice of resolution for no-confidence against him has been given in the National Assembly but has not been voted upon, or
- Against him a resolution of no-confidence has been passed by the National Assembly, or
- When is continuing in his office after his resignation, or
- When the national assembly is already dissolved.
Similarly, under article 58(2), the President may also dissolve the National Assembly at his discretion if, after a vote of no confidence against the Prime Minister having passed, no other member of the National Assembly commands the confidence of a majority of the members of the National Assembly, as determined in a special session of the National Assembly convened for the purpose.
Art. 58(2)(b) Dissolution Of National Assembly and dismissal of Prime Minister and Cabinet by the President of Pakistan under Art.58(2)(b) of the Constitution Held, if it could be shown that no grounds existed on the basis of which an honest opinion could be formed “that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary” the exercise of the power by the President would be unconstitutional and open to correction through judicial review (Nawaz Sharif v Federation of Pakistan PLD 1993 SC 473)
Appointment of Care-Taker Government and Fixing the Date for Fresh Election
Clause 5 of article 48 provides that when the President dissolves the National Assembly, he must:
(a) set a date for a general election to the Assembly that is not over than ninety days from the date of the dissolution; and
(b) appoint a caretaker Cabinet in accordance with the provisions of Article 224 or, as the case may be, Article 224A.
Resignations Submitted to President
Certain office holders are required, under the constitution, to submit their resignations, if they resign from their offices, to the President of Pakistan. For example, according to article 53(5), the Speaker of the National Assembly and according to article 61 the Chairman of Senate, may resign his office by writing to the President under his hand. Similarly, under article 91(8) the Prime Minister may, by writing under his hand addressed to the President, resign his office. Article 92 (c) provides that a Federal Minister or Minister of State may resign his post by writing to the President under his hand. Under article 101(4) The Governor may, by writing under his hand addressed to the President, resign his office. Likewise, article 206 of the Constitution provides that a Judge of the Supreme Court or of a High Court may resign his office by writing under his hand addressed to the President.
Summoning and Prorogation of Parliament
Article 54(1) empowers the President to summon either House or both Houses or the Parliament in joint session at any time and location he deems appropriate, and also prorogue the same.
Address to the Parliament
Under article 56(1) of the Constitution the President may address either House or both Houses together, and may require attendance of the members for that purpose.
Similarly, under article 56(3), it is constitutional duty of the President to address both Houses assembled together and inform the Majlis-e-Shoora (Parliament) of the causes of its summons 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.
Messages to Parliament
According to article 56(2) the President may send messages to either House, whether in connection with a bill currently pending in the Majlis-e-Shoora (Parliament) or otherwise, and any House to which a message is sent shall consider any matter required by the message with all convenient dispatch.
Assent to the Bill
A bill passed by parliament becomes law only when assented to by the President. According to article 75(1) when a Bill is presented to the President for assent, the President shall, within ten days,
(a) assent to the Bill; or
(b) in the case of a Bill other than a Money Bill, return the Bill to the Parliament with a message requesting that the Bill or any specified provision thereof be reconsidered and that any amendment specified in the message be considered.
Clause (2) of article 75 says that when the President returns a Bill to the Parliament, it shall be reconsidered by the Parliament in joint sitting, and if it is again passed, with or without amendment, by the votes of the majority of the members of both Houses present and voting, it shall be deemed to have been passed by both Houses for the purposes of the Constitution and shall be presented to the President. The President shall give his assent within ten days, or, if he fails to give his assent within stipulated time, such assent shall be deemed to have been given.
After the President assented, or deemed to have assented, to a bill it shall become law and be an Act of Parliament.
Power to Promulgate Ordinances
Under article 89 of the Constitution the President is empowered to promulgate an ordinance. It says that except when the Senate or National Assembly is in session, the President may, if satisfied that circumstances exist that necessitate immediate action, make and promulgate an Ordinance as the circumstances may require. An Ordinance issued under Article 89 has the same force and effect as an Act of Parliament, and is subject to the same limitations as the power of Parliament to enact law. However, every such an ordinance shall be laid
(i) before the National Assembly— I if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73, and shall be repealed at the expiration of one hundred and twenty days from its promulgation or, if a resolution disapproving it is passed by the Assembly before the expiration of that period, upon the passing of that resolution. However, the National Assembly may extend the Ordinance for a further period of one hundred and twenty days by resolution, and it shall be repealed at the expiration of that period, or if a resolution disapproving it is passed by the Assembly before the expiration of that period, upon the passing of that resolution. It needs to be noted that an extension for a further period may be made only once.
(ii) before both the Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph i, and shall be repealed at the expiration of one hundred and twenty days from its promulgation or, if a resolution disapproving it is passed by either House before the expiration of that period, upon the passing of that resolution. However, either House may extend it for a further period of one hundred and twenty days by resolution, and it shall be repealed at the expiration of the extended period, or if a resolution disapproving it is passed by a House before the expiration of that period, upon the passage of that resolution. It needs to be mentioned that only one further period extension may be granted.
It is also important to note that President of Pakistan, by virtue of the provisions of Article 89(3) is empowered to withdraw any time ordinance he has issued. An Ordinance laid before the National Assembly or both the Houses shall be deemed to be a Bill introduced in the National Assembly or in the House where it was first laid.
Exercise of Executive Authority of Federation
According to article 90 the executive authority of Federation shall be exercised in the name of the President by the Federal Government, which shall be composed of the Prime Minister and Federal Ministers, and which shall act through the Prime Minister, who shall be the chief executive of Federation.
Likewise article 99 requires that all executive actions of the Federal Government shall be expressed to be taken in the name of the President.
Call Upon the Prime Minister to Assume the Office
The President shall call upon the member of National Assembly elected under clause (4) of article 91 to undertake the office of Prime Minister. The Prime Minister shall, before entering the office, make an oath before the President in the form set out in the Third Schedule.
Furthermore, subject to clauses (9) and (10) of Article 91, President shall appoint Federal Ministers and Ministers of State from among the members Parliament, on the advice of the Prime Minister. Before entering upon office, a Federal Minister or Minister of State shall make before the President an oath in the form set out in the Third Schedule. Article 92(3) provides that a Federal Minister or Minister of State may be removed from his office by the President on the advice of Prime Minister.
Likewise, the President may, on the advice of Prime Minister, appoint up to five advisors on such terms and conditions as he may determine.
Require the Prime Minister to Obtain Vote of Confidence
Clause 7 of article 91 provides that the Prime Minister shall hold office during the pleasure of the President, However, the President may exercise his powers under this clause only if he is satisfied that the Prime Minister lacks the confidence of a 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.
Under article 94 the President may ask the Prime Minister to continue to hold office until his successor enters upon the office of Prime Minister.
Appointment to various important offices are made by the President, however most of these appointments are made on the advice of Federal Government or Prime Minister. The offices to which appointments are made by the President include: Attorney General of Pakistan (article 100), Governors of the Provinces (article 101), Council of Common Interests (article 153), National Economic Council (article 156), National Finance Commission (article 160), Auditor General of Pakistan (article 168), Appointment of Judges of Supreme Court and High Courts as recommended by Judicial Commission and Parliamentary Committee and forwarded by Prime Minister (article 175-A), Chief Election Commissioner (article 213), Members of the Election Commission (article 218), Members of the Council of Islamic Ideology (article 228) and Chairman Federal Public Service Commission (article 242).
Ask for advice of the Supreme Court
Article 186 of the Constitution empowers the President to refer a question to the Supreme Court for consideration at any time if he considers it necessary to obtain the opinion of Supreme Court on a question of law that he considers to be of public interest. The Supreme Court must consider a question that has been referred to it and will inform the President of its opinion.
Reference to Supreme Judicial Council and Removal of Judges of Superior Judiciary
According to clause 5 of article 209 If the President or the Council believes that a Judge of the Supreme Court or a High Court may be incapable of properly performing the duties of his office due to physical or mental incapacity, or may have been guilty of misconduct. The President shall direct the Council, or the Council may do so on its own motion, to inquire into the matter. The President may remove the Judge from office if the Council reports to the President that it is of the opinion:
(a) that the Judge is incapable of performing the responsibilities of his office or has been guilty of misconduct, and
(b) that he should be removed from office.
Proclamation of Emergency
Under article 232 the President can proclaim emergency if he believes that a grave emergency exists in which Pakistan’s security, or any part of it, is threatened by war or external aggression, or by internal unrest beyond the control of a Provincial Government. However, for the imposition of an emergency due to internal disturbances beyond the control of a Provincial Government, a resolution from Provincial Assembly of the province concerned is required to have passed. If the President acts on his own, the Proclamation of Emergency must be laid before both both Houses of Parliament within ten days for approval by each House.
Under article 234 if the President is satisfied, after receiving a report from the Governor of a Province, that a situation has arisen in which the government of the Province cannot be carried on in accordance with the Constitution, the President may, or if a resolution in this regard is passed by each House separately, by Proclamation,
(a) assume all or any of the functions of the government of the Province, as well as all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than the Provincial Assembly, or direct the Governor of the Province to do so on behalf of the President;
(b) declare that the functions of Provincial Assembly are exercisable by Parliament or under its authority; and
(c) make such incidental and consequential provisions as the President deems necessary or desirable for carrying out the object of Proclamation, including provisions suspending in whole or in part the operation of any provisions of the Constitution relating to anybody or authority in the Province.
However, nothing in Article 234 empowers the President to assume, or direct the Governor of the Province to assume on his behalf, any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provisions of the Constitution relating to High Courts.
According to Article 235(1), if the President believes that a situation has arisen that jeopardises Pakistan’s economic life, financial stability, or credit, he may, after consulting with the Governors of the Provinces or, as the case may be, the Governor of the Province concerned, issue a proclamation to that effect, and while such a proclamation is in effect, the executive authority of Federation extends to the giving of directions to any Province to follow such principles of financial propriety as may be specified in the directions, as well as giving such other directions as the President may deem necessary in the interest of Pakistan’s economic life, financial stability, or credit.
Article 236 provides that a subsequent Proclamation may vary or revoke a Proclamation issued under this Part X of the Constitution. Furthermore, any court shall not call into question the validity of any Proclamation or Order issued under Part X of the Constitution.
Command of Armed Forces
Although Federal government has command and control of the armed forces but, according to article 243, its supreme command shall vest in the President. The President, subject to law, has the authority to establish and maintain the Pakistani Military, Naval, and Air Forces, as well as their Reserves, and to grant commissions in such forces.
The President shall, on the advice of Prime Minister, appoint the Chairman of the Joint Chiefs of Staff Committee, the Chief of the Army Staff, the Chief of the Naval Staff, and the Chief of the Air Staff and will also fix their salary and allowances.
Awards and Titles
Article 259 prohibits federal and provincial governments from conferring any title or honour, however, as permitted by Federal law, the President may bestow honours in recognition of gallantry, distinguished service in the Armed Forces, academic distinction, or distinction in the field of sports or nursing.
Immunity from Criminal and Civil Proceedings
Article 248 (2) of the Constitution provides immunity to President and Governors from the criminal proceedings during the term of their offices. By the same token clause (3) of the article 248 states that during the President’s or a Governor’s term of office, no process for their arrest or imprisonment shall be issued by any court.
Similarly, clause (4) provides protection from civil proceedings. It provides that no civil proceedings in which relief is sought against the President or a Governor shall be brought during his term of office in respect of anything done or not done by him in his personal capacity, whether before or after he takes office, unless notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.
President to act on the advice of Prime Minister
According article 48(1) of the Constitution the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister in the exercise of his functions: However, that the President may, within fifteen days, require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall, within ten days, act in accordance with the advice tendered after such reconsideration.
Clause 4 of the article 48 says that the question of whether the President received any, and if so, what advice, from the Cabinet, the Prime Minister, a Minister, or a Minister of State, shall not be questioned in or by any court, tribunal, or other body.
Exercise of powers by President, sometimes, is made subject to the performance of certain duties or existence of certain conditions. Irrespective of the fact whether the functions exercised by the President or a Governor are the functions of the President or Governor they have to be exercised with the aid and advice of the Cabinet, acting through the Prime Minister or Chief Minister, except those where they have exercise their discretion, as empowered by the Constitution. (PLD 1988 Lah 725)
The President has the power to grant pardons, reprieves and respite and to remit and commute or suspend any sentence but these powers are exercised in accordance with the advice of Prime Minister. The executive authority of the federation is exercised in the name of the President; the actual exercise of power is by a member of the cabinet headed by the Prime Minister who is the chief executive of the country.
The Discretionary Powers of the President are to be exercise justifiably:
“The President cannot exercise his powers…… on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature…… His action must appear to be called for an justifiable under the constitution if challenged in a court of law.” (Khawaja Muhammad Sharif vs. Federation PLD 1988 Lah. 725)
Relationship between the Prime Minister and President
It is manifest, therefore, that in the scheme of the Constitution of Pakistan the Prime Minister in administering the affairs of the Government is neither answerable to the President nor in any way subordinate to him. In formulation of the policies of his Government and in the running of its affairs, the Prime Minister is answerable only to the National Assembly and not to the President. Indeed, it is the President who is bound by the advice of the Prime Minister or the Cabinet in all matters concerning formulation of policies and administration of the affairs of the Government and not the other way about, as appears to have been mistakenly understood. Undoubtedly, the President may require the Cabinet or the Prime Minister, as the case may be, to reconsider any advice tendered to him but the President is bound to act on the advice tendered, even if it be the same, after reconsideration. Undoubtedly, both are expected to work in harmony and in close collaboration for the efficient running of the affairs of the State but as their roles in the constitution are defined, which do not overlap, both can exercise their respective functions unhindered and without bringing the machinery of the Government to a standstill. Despite personal likes or dislikes, the two can co exist constitutionally. Their personal likes or dislikes are irrelevant so far as the discharge of their constitutional obligations are concerned. Despite personal rancour, ill will and incompatibility of temperament, no deadlock, no stalemate, no breakdown can arise if both act in accordance with the terms of the Oath taken by them, while accepting their high office.
The President is a symbol of unity of Pakistan. He is elected by the Provincial Assemblies as well as the National Assembly and is a binding force between the Federation and the federating units. In a pluralist Society rent with political polarization, ethnic, racial, provincialism and other diversities, for strengthening the process of social harmony, democracy and creative national enthusiasm, the role of the President becomes all the more important. These objects can meaningfully be achieved if the President shuns politics and remains a non controversial figure……Regulation of relations between the President and the Prime Minister is a paramount national requirement. Both are expected to exercise tolerance, exhibit endurance and act within the limits of Constitutional propriety. The President is constitutionally required to act on the advice of the Prime Minister/Cabinet, but such advice ought not to be loaded with a perception of dominance and veto power. If the President counsels the Prime Minister or the Cabinet, his counselling is entitled to weight. These are some of the norms of constitutional jurisprudence for successful operation of the constitutional prescription. (Nawaz Sharif v Federation of Pakistan PLD 1993 SC 473)
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