Advocate
There is no cavil with this legal proposition that the President of Pakistan is constitutionally bound to act on the advice of the Prime Minister in both two situations for the appointment and removal of a Governor of a province under Article 101 (1) of the Constitution of Pakistan. Appointment and removal of a Governor is the constitutional prerogative and discretion of the Prime Minister, where he can recommend a name through a summary to the President of Pakistan under Article 101 (1) of the Constitution for the appointment and removal of a Governor, and the President on receipt of such advice is constitutionally bound to act in accordance with the advice of Prime Minister.
Though the President of Pakistan is the appointing authority of a Governor in province under the Constitution but he cannot perform such functions independently for such appointments or for removal of a Governor at his own discretion under any other Article of the Constitution. The interpretation with due respect earlier given by the President office while rejecting the first summary forwarded by the Prime Minister for removal of the previous Governor of Punjab under Article 101 (3) had no legal basis, and the office of President had wrongly applied the provisions of Article 41 of the Constitution.
There is as well no other Article available after 18th Constitutional amendment which empowers the President to reject the advice of the Prime Minister or Cabinet given to him under Article 48(1) of the Constitution. Article 48(1) of the Constitution clearly states that in the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister with only exception that for a limited period which is within fifteen days, the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act within ten days in accordance with the advice tendered after such reconsideration. Thus, the President is bound to act on the advice of the Cabinet and Prime Minister given to him under Article 48(1) of the Constitution of Pakistan.
The President of Pakistan is performing three types of functions, constitutional, statutory and legal. The President is constitutionally bound to perform all functions where he has been given the advice by Cabinet or the Prime Minister given under Article 48. The appointment and removal of a Governor is such advice to the President, where he is bound to act on the advice of the Prime Minister and cannot deviate at any cost.
As per Constitutional intent, the Governor of a Province would only continue to perform his functions or to remain in office until he would have the confidence and will of a Prime Minister and not of President under the Constitution. It is also the prerogative of the Prime Minister to remove a Governor any time without any reason through a summary initiated by him for the endorsement of the President and the President would have to act on the advice of the Prime Minister.
The President office has taken a wise decision with the backdrop prevailed during the last four weeks while accepting the recent summary of Prime Minister re-submitted to him for his reconsideration under Article 101 (1) of the Constitution for the appointment of a new Governor in Punjab. Hence the decision would address to some extent the constitutional crises relating to the appointment of the Governor Punjab and would also set a good precedent for future.
(Author can be reached at hafizahsaan47@gmail.com )
