by Wajih Ahmad Sheikh in Dawn, August 21st, 2023
While legal and political analysts have varied opinions on the fate of the bills for amending the Official Secrets Act and the Pakistan Army Act, they are unanimous in their belief that President Arif Alvi should have taken timely action against those involved in the alleged forgery committed at the Presidency.
Some also said the president acted ‘irresponsibly’, as an afterthought, when he decided to use social media to advance the ‘forgery’ claim, and that too after an unexplained delay of over 24 hours.
Former Supreme Court Bar Association president Yasin Azad said it is beyond comprehension that President Alvi would issue such a statement on social media.
He said the president was required, under Article 75 of the Constitution, to write a note when returning the bills to parliament for reconsideration.
Mr Azad believes that the president should have ordered an inquiry into the alleged forgery, since reports of his assent to the two bills had been all over the media since Saturday.
The former SCBA leader also advised the president to resign from his august office and also inform the nation if there was any pressure on him to sign the bills.
He said the bills became the law as the president did not return them to parliament within the stipulated ten day-period.
The senior lawyer also saw the president’s denial that he did not accord assent to these laws as “an afterthought” following the arrest of Shah Mahmood Qureshi in a case about the cipher controversy. He said the president had failed to protect the Constitution and proved himself a loyalist to his party, the PTI.
In multiple tweets on the situation arising out of the president’s statement, Advocate Salman Akram Raja said Article 75 of the Constitution allows the president to return a bill for reconsideration generally.
He said the president may propose specific amendments, but this is not essential.
“There is no deemed assent after 10 days at this stage. The president’s position that he directed return deserves the highest credibility,” Mr Raja added.
He said a press conference by the caretaker ministers for law and information also clarified that the president did not sign either bill.
“They are claiming bills were not received back so the President’s assent is to be deemed. This goes against Art 75(1). Deemed assent only applies to bills passed at a joint session after reconsideration,” he added.
Mr Raja believed that if a bill is not actually received back by the president, the parliament should consider this a deemed return and convene a joint session to reconsider the bill.
Political analyst Ahmad Bilal Mehboob, who heads the Pakistan Institute of Legislative Development and Transparency (Pildat), is fairly certain in his view that President Ali handled a serious issue irresponsibly and failed to opt for the appropriate options.
He also said that he found Mr Alvi’s statement to be “full of confusion”.
He said the president did not disclose whether he instructed his staff at the President House verbally or in writing to return the bills to parliament.
Mr Mehboob maintained that the president was bound to write a note when returning the bills to parliament for reconsideration in light of his objections or proposed amendments.
The president, he said, did not order or initiate any action against the officials involved in this alleged forgery, which reflects badly on his claim.
He also believed the bills would have become the law following the notifications issued by the government.
But Advocate Ali Javed Darugar does not agree with the caretaker government in its interpretation of Article 75.
In his words, the high office of the president needs to be trusted in general, as his claim cannot be brushed aside without a detailed inquiry.
He said the caretaker government admitted that the president did not sign the bills and used the option of “implied assent” to pass them into law without considering the bills in parliament again, as per the Constitution.
In his opinion, the delayed statement of the president also showed his helplessness. He said the situation would have been different if the president had made the tweet earlier.
Deemed assent or not?
“Alleged committing of a forgery of presidential assent is a new low in our statecraft and politics. This is worrisome at so many levels,” lawyer Usama Khawar told Dawn.com.
“The president should initiate criminal and disciplinary proceedings against the officials of the President House, he said, adding that his seriousness about this issue would be gauged if criminal proceedings were initiated.
In the present controversy, he said, the president was placed in a “powerful position” due to the dissolution of the National Assembly. “If he returned the bills, he would essentially have killed them because there was no National Assembly to pass the bills,” Mr Khawar explained.
Lawyer Basil Nabi Malik said the situation was “troubling to say the least”. “Without his consent as president, it cannot be said that the bills in question have passed into law. Tumultuous times ahead,” he observed.
Explaining the concept of “deemed assent”, Barrister Rida Hosain said that even if the president does not, in fact, give his assent, the deeming provision “only kicks in once the bill has been reconsidered and passed by parliament in a joint sitting under Article 75(2). There is no automatic deemed assent attached to an unsigned bill”.
“If the President’s claims are true, neither of these laws are valid pieces of legislation,” she noted.
Barrister Asad Rahim Khan also noted that within the scheme of Article 75, “deemed assent is relevant to the second time the president is sent a bill, and not the first”.
He added: “As this was the first round, the president’s express assent was essential for the bill’s passage into law — anything less is to have returned it under Article 75(1)(b), which does not mandate that any specific provision be addressed.”
Likewise, lawyer Reema Omer referred to a press conference held by interim law and information ministers after the president’s denial, noting that the government, too, had confirmed the he did not give his assent to the two bills.
“Article 75 doesn’t provide for ‘deemed assent’ if the president fails to give [his] assent within ten days in the first instance. How can these two bills be considered acts of Parliament?” she questioned. https://www.dawn.com/news/1771309/analysis-differing-opinions-one-conclusion
