Ghosts of constitutions past

May 15, 2022

On May 10, 2022, a notification was issued by the Cabinet Division stating that the governor of Punjab, Mr Omar Sarfaraz Cheema, had been removed from office. Earlier, the prime minister had advised...

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On May 10, 2022, a notification was issued by the Cabinet Division stating that the governor of Punjab, Mr Omar Sarfaraz Cheema, had been removed from office. Earlier, the prime minister had advised the president to remove the governor, but the president had refused. Notwithstanding that refusal, the notification purported to remove Mr Cheema as governor.

The fundamental issue regarding the governor’s removal is not who gets to order it, but who gets to really make the decision: the president or the prime minister (and his cabinet). That debate, in turn, stems from the words used to describe the term for which the governor shall hold office as provided in Article 101(3) of the constitution – the “pleasure of the President.”

Taken literally, the phrase indicates that the governor serves for as long as the president wants. But in this case, like most constitutional debates, the phrase has a history which matters. In this case, the phrase is our reworking of a term taken from English legal tradition, “Her majesty’s pleasure”. In the UK, the phrase refers to the idea that all legal authority of government emanates from the monarch. Similar terms of art also remain in use in Commonwealth countries where the Queen is represented by a governor-general (such as Canada and Australia).

The ‘pleasure’ of the head of state is commonly used as a term of art in various contexts, such as the indeterminate time period for which an official holds office or the time period for which prisoners are to be detained after conviction for a criminal offence. In the context of the term of an office holder it is also called the ‘doctrine of pleasure’ and the earliest discussions of the legal concept are found in the decision of the Privy Council of UK in Shenton v Smith, 1895 AC 229 (PC) and the decision of the English Court of Appeal in Dunn v R, (1896) 1 QB 116.

In simple terms, the ‘doctrine of pleasure’ provided that the Crown (the government acting in the name of the King or Queen of England) could put an end to the employment of a civil servant at its pleasure and that the office holder had no security of tenure. The reason why this doctrine was recognized is that in many cases it would be detrimental to the interests of the state if an employee such as a civil servant or military officer continued in employment. Accordingly, there is recognition that larger public interests determine whether someone should continue in office (or not) and it is important for the state to have the flexibility to remove them.

It is in this context of an undetermined length of service of the office holder that the phrase “pleasure of the president” is used in our constitution. When the constitution was first drafted in 1973, there were only two office holders which served at the pleasure of the president: the attorney general and the governor of each province. In the original 1973 constitution, all power exercisable by the president was subject to the binding advice of the prime minister. Article 48(1) clearly stated this and there was no mention anywhere of the president having any discretion in the exercise of any power that may have been granted to him. The pleasure of the president was therefore, in reality, the pleasure of the prime minister.

The present constitution, however, is quite different. In a number of places (but not all), where the president has been given power there is also repetition of the language providing for the power to be exercised in accordance with the advice of the prime minister. For example, Article 92 originally gave power to the prime minister to appoint and remove federal ministers without any mention of the president. Now, the constitution states that it is the president that appoints and removes a minister, but it repeats that it must be on the advice of the prime minister. There is similar language in relation to the appointment of advisors (Article 93), the appointment of governors (Article 101(1)), the appointment of the chairman of the Public Service Commission (Article 242(1A)), and the appointments of the chairman, the joint chiefs of staff committee and all three chiefs of the armed forces (Article 243(4)).

So why refer to the “advice of the prime minister” repeatedly when you have already said in Article 48 that it applies everywhere? Normally, this would be considered bad drafting. But deeper investigation shows that this apparently surplus language is largely as a consequence of efforts to undo past changes by military dictators.

When General Ziaul Haq decided to restore the 1973 constitution in 1985, he made a number of changes to protect his powers as president. The repetition of specific provisions making the president’s power subject to the advice of the prime minister was therefore necessary in certain cases because General Zia was creating exceptions there to the general rule that the president had complete discretion in all other matters. As a concept this was alien to the original constitution. The word ‘discretion’ was not used even once in the 1973 constitution. But in 1985 Gen Zia made a number of changes which gave the president discretion in key constitutional matters.

Since 1985, most of Gen Zia’s amendments have been reversed, in particular through the 18th Amendment. However, not all of the general’s changes have been completely reversed. In particular, Article 101(1) originally only stated that the appointment of the governor would be made by the president, and it was understood to be made on the basis of the prime minister’s binding advice. Gen Zia first amended the constitution in 1985 to say that the president could make the appointment “in his discretion”. Then via the Eighth Amendment, changed the language to say that governors would be appointed “after consultation with the prime minister” (which meant the president could ignore the prime minister’s advice). The 13th Amendment changed this to “on the Advice of the Prime Minister” and made the advice binding. General Musharraf in the Legal Framework Order of 2002 changed it back to “after consultation with the prime minister”. And then the 18th Amendment changed it back to “on the advice of the prime minister”, which remains.

Today most of General Zia’s changes have been done away with, but Article 48(2) still remains. In our current constitution, Article 58(2) is now the only provision which identifies a specific function in which the president expressly has discretion and Article 48(2) is meant to be read with this provision. This pertains to the president’s power to dissolve the National Assembly when there is no member which commands the confidence of the majority. There is no other function of the president that identifies a discretion expressly.

We now come to our current dilemma. Does serving at the “pleasure of the president” imply that the president can remove the governor at his discretion or is the president still meant to act on the prime minister’s advice?

A seemingly sensible reading of Article 101(3) is one which relies entirely on the original language of the constitution, and which does not envisage the president having any discretion. However, such a reading does not consider the fact that Article 48(2) is now a part of the constitution. It also does not consider Article 101(5) which gives the president power to make provision as he thinks fit for the discharge of the governor’s functions. Although these amendments were designed for the benefit of General Zia’s system, they are still part of the constitution now and must be interpreted consistently with the other parts.

A possible solution is provided by the recent Supreme Court judgment in the case of Justice Qazi Faez Isa. In that case, the Supreme Court held that the president had no discretion to make the decision to send a reference against a superior judge to the Supreme Judicial Council, in part because of the absence of the word “discretion” in Article 209(5). Furthermore, while the language in debate here is different, the Supreme Court in Justice Isa’s case relied on the provisions of the constitution to hold that it is not the president who runs the government, but the prime minister and his cabinet. To my mind, this is determinative of the purpose for which the prime minister must have the final say in removing the governor.

Ultimately, the interpretation may rest on an historical understanding of the term ‘pleasure’ in its legal context, principles of consistency within the legal text or the constitutional role that an office holder plays. However, where there are competing interpretations which carry weight, those tasked with adopting one over another must look to the far-reaching consequences of their decision. Often questions of right versus wrong become questions of order versus chaos. This is a question which if answered wrongly will be the beginning of governmental chaos.

The writer is a barrister. He tweets at miansamiuddin

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