As the political crisis in Punjab continues with no end in sight, another constitutional question has been raised.
The deadlock is over the removal of PTI's Omar Sarfraz Cheema, who was appointed as governor on April 3.
Even though the president had "strongly rejected" the prime minister's advice to remove Cheema from the post, a notification to remove him was nonetheless issued late last night by the Cabinet Division.
"The president has conveyed to the prime minister of Pakistan that governor Punjab cannot be removed without his approval," the tweet from the president's office stated.
President Alvi cited Article 101(3) of the Constitution as giving him the power to reject the premier's advice.
Meanwhile, the Cabinet Division, in its notification, said Prime Minister Shehbaz Sharif had rendered advice to the president twice — on April 17 and May 1 — to remove Cheema from office and that despite the president's rejection to follow that advice, under Articles 101 and 48(1), Cheema ceases to hold office.
The question that needs to be answered is whether the Constitution empowers the president to reject the advice of the prime minister on the governor's removal.
What does the Constitution say?
According to Article 101(1), "There shall be a governor for each province, who shall be appointed by the president on the advice of the Prime Minister."
Furthermore, Article 101(3) states that "the governor shall hold office during the pleasure of the president [and shall be entitled to such salary, allowances and privileges as the [president may determine]."
Cheema had, last month, interpreted this to mean that the prime minister did not have the authority to remove him from office, saying that only the president could do so.
However, others have argued that since the president is bound to act on the advice of the prime minister, he does not have the authority to stop Cheema's removal.
This is because Article 48 (1) says, "In the exercise of his functions, the president shall act on and in accordance with the advice of the cabinet or the prime minister."
However, the very next clause, Article 48(2) states, "Notwithstanding anything contained in clause (1), the president shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so."
It further states that the validity of anything done by the president in his discretion shall not be called in question on any ground whatsoever.
Separately, Schedule V-B of the Rules of Business 1973 also binds the president to act on the directives of the prime minister concerning the removal of a governor.
Dawn.com reached out to legal experts for more clarity and the verdict on this is split.
President's discretionary powers
Lawyer and political analyst Abdul Moiz Jaferii said while he believed the Cabinet Division's notification of Cheema's removal was unconstitutional, the former governor's actions in his month in office were similarly unconstitutional.
He said that even though the vast majority of the president's discretionary powers had been reduced through the 18th Amendment, he still retained the power of governors serving at his pleasure under Article 101.
The president is bound to seek the prime minister's advice regarding a governor's appointment but the governor's tenure is at the pleasure of the president, Jaferii said. The restrictions imposed by Article 48, related to seeking the prime minister's advice, would be applicable if a new governor was to be appointed on a vacant seat.
The president has a ceremonial role as the head of the state, therefore, the bar to remove him from office is far higher than that for the prime minister, he said.
According to Article 47, the president may be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.
The support of half of the parliament's members would be required to give the National Assembly speaker or Senate chairman the notice of intention to remove or impeach the president. The support of two-thirds of the parliament's members would be needed to pass the resolution at a joint sitting of the houses, following which the president would immediately cease to hold office.
This is because the framers of the Constitution expected that the parliament would choose a person of maturity for the ceremonial office of the president, since a "lackey or a thug" could abuse their authority, Jaferii said.
He added that the governor was an extension of the president and would, therefore, be just as difficult to remove from office.
Laws are made on the assumption that everyone will be acting with the best intentions, which is why a procedure to remove the governor was not envisaged, the lawyer explained. However, the former Punjab governor's actions in the last month, including his refusal to administer oath to chief minister-elect Hamza Shehbaz, were not in accordance with the spirit of the Constitution.
Resultantly, the governor's misconduct ought to have led to a fair president demanding his resignation, he said, adding that the president should himself also have the grace to realise the majority in power has changed and resign.
Jaferii also said that the Rules of Business 1973, in his opinion, were in conflict with the Constitution's "expressed intent", where Article 48(2) affords the president discretion and Article 101(3) clearly speaks of the governor serving at the pleasure of the president.
"Power to appoint requires reliance upon the prime minister's advice. Once appointed, until the expiry of the presidential term, the governor serves according to president. The president’s pleasure cannot be conditioned upon advice," he said, adding that it was clearly an individual's personal decision.
He maintained that laws regarding ceremonial heads were made with "bona fide office holders in mind and not partisan hacks".
"But it is what it is. If you want to remove a governor, come up with the numbers and reasons to remove a president," he said.
Advocate and founder of Women in Law, Nida Usman Chaudhry, too believed that the removal of a governor fell under the president's discretionary powers.
There were two types of provisions in the Constitution — those that made it mandatory for the president to follow the premier’s advice and others in which he could exercise his discretion, she said.
"I believe the removal of the governor does not fall in the category of mandatory provisions," Chaudhry said. Article 101 only mentions the appointment of a governor so the prime minister's advice is relevant only to that extent, she elaborated.
Article 101(3), which states that the governor shall hold office during the pleasure of the president, was very clear that the official's removal fell within the president's discretion, she said.
In addition, Article 48(1) was not applicable to Cheema's situation because of the opening line of Article 48(2) which states that “Notwithstanding anything contained in clause (1), the president shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so,” she further said.
Lawyer and activist Jibran Nasir also noted that while the governor was appointed on the prime minister's advice, he completed his tenure at the president's pleasure. Thus, the language of Article 101 suggests that the president's decision to not remove Cheema would be protected under the same, he opined.
On the other hand, if the government maintained that the president was supposed to act on its advice within a stipulated timeframe, then at best, the president could be accused of violating the Constitution, he said.
However, the violation could not be cured by assuming that the president has abided by the advice simply on account of lapse of time.
Nasir explained that the view was further fortified by a reading of Article 75, related to the president's assent to bills. In that Article, he said, it is specified that if the president fails to give assent within the specified time limit, the assent would be "deemed" to have been given on account of lapse of time.
However, the words "deemed to have been given" were not written in Article 48(1). If both Articles were juxtaposed, it would tilt in favour of the president's views.
The Supreme Court could clarify the matter if it was taken up, he added.
PM, cabinet as locus of power
Advocate Asad Rahim emphasised on understanding the context before reaching a conclusion.
Prior to the 18th Constitutional Amendment, the governors were all-empowered agents of the president, and their appointments were a result of consultation between the president and prime minister, he said.
However, over the years, there was a shift towards the parliamentary form of government that has seen both the 18th Amendment and the Supreme Court interpret the Constitution in such a manner that the power of the governor's removal and appointment rests with the prime minister, whose advice is binding, he elaborated.
Talking about Article 101(3), Rahim said, "The fact that the governor serves at the pleasure of the president is in the same vein as the fact that all executive actions are carried out in the name of the president as our head of state; the prime minister and cabinet nonetheless remain the locus of power."
Lawyer Basil Nabi Malik said President Alvi's action of "rejecting" the prime minister's advice was "unconstitutional" and the argument that he could act on his sole discretion in the matter was incorrect.
"The president may act on his discretion in certain matters in which such discretion is bestowed upon the same by the Constitution. This matter is not one of them," he said.
The president is bound by Article 48, read with the Rules of Business, 1973, to act in accordance with the advice of the prime minister, he explained.
Malik said the term 'in the pleasure of' had been looked at in cases, and that there was some caselaw to suggest that such a term may not necessarily connote absolute discretion, and in fact, can be limited by provision of 'advice', 'consultation' or other mechanisms.
He, however, agreed with Jibran Nasir's assessment that the federal government could not have notified that the governor ceased to hold office by deeming that the president had given his assent on account of lapse of time. "The wording of Article 48(1) does not indicate such an interpretation."