SC ends debate on president’s dual office —now time to act

ISLAMABAD: The Supreme Court has held that the office of the President of Pakistan falls in the service of Pakistan and is thus not supposed to indulge in politics, making it well-nigh impossible for the incumbent head of state, Asif Ali Zardari, to continue his political activities from the presidential palace.

Therefore, the court conclusively wound up the debate on the question whether or not the office of the president is included in the service of Pakistan.

All presidents in parliamentary republics are expected to be apolitical and non-partisan and objectively disengaged with any and all affiliations of a political, ethnic, linguistic, or geographic nature, the detailed judgment on Asghar Khan’s petition said.

The court ruled that the president being the symbol of the unity of the federation occupies a neutral position under the constitution and is not envisaged by it to be supporting or backing any particular political party or a group of political parties, or certain individual politicians or candidates contesting election from a given platform to the disadvantage of any other political party, politician, political worker, individual, etc.

The apolitical role of the president under the constitution cannot be overemphasised in the light of the historical background, the ruling said.Besides the office of the president, the judges and chief justices of the superior courts are also included in the scope of service of Pakistan by failing to make reference to them among the exclusions from ‘Service of Pakistan’ in article 260.

This provision specifically excludes certain offices from the service of Pakistan which it has listed. But the offices of the president and provincial governors are not mentioned among these exceptions, the judgment said.

It noted that the 1956 constitution included the president among exclusions from the service of Pakistan, while the 1962 and 1973 basic documents did not include it. There is no provision to the contrary that excludes the office of the president from being in the service of Pakistan.

The constitutional provisions or the presidential oaths prescribed in India, Bangladesh, Ireland, etc, do not have any express provisions forbidding a president from engaging in a political role or holding a political party office. Yet, all constitutional commentaries, jurisprudence and conventions demand and expect of the president in these countries to refrain from any exhibition of political leanings, preference, bias or association. It is understood that doing so would harm the unity of the state that the president represents. These countries do not have such express provisions because the former Commonwealth countries headed by the British monarch in the past or today have relied upon constitutional norms and conventions to dictate the exclusion of the head of state from all political roles.

The ruling said the functions and roles designated for the president are limited to those provided for by the constitution. These include the provisions of article 45, the presidential grant of pardon; articles 48, limiting the exercise of presidential functions to the advice of the cabinet; or article 56, providing for the president to address either or both houses of parliament etc. It is also important to distinguish the constitutional office of the president from other offices of civil service within the service of Pakistan that are appointed under article 240 of the constitution.

The judgment said it would be impossible to imagine a parliamentary system continuing to be a democracy where an indirectly elected president chose to ignore the advice of government and acted in his own name.

There can be no better or more concrete understanding of the role of the president and the provisions inter alia, of article 41 to demonstrate practically what was envisaged as the role of the president. Thus, it is our own constitutional history enacted by no less than a group of elected representatives who both framed the constitution and then implemented it which must inform our understanding of the constitution and its interpretation. No one could have had a better grasp and comprehension of the apolitical and neutral role of the president than such framers of our constitution. The historical record also shows that although late Chaudhry Fazal Elahi was originally a member of the Pakistan People’s Party, after assuming the office of president, he did not indulge in partisan activity of political nature.

The verdict said that the president remains the head of the state and represents the unity of the republic, therefore, after having been sworn in as the President of Pakistan, he owes a constitutional duty to represent the unity of the republic as head of the state and is not supposed under the constitution to support any favoured candidate in the elections or a group of political parties like IJI (Islami Jamhoori Ittehad).

The verdict said that the role and nature of the office of president or monarch is the same in every parliamentary form of government. What differs is the form in which that role is laid down. In civil law countries, the role of the president and restrictions upon his office and person are enumerated in great detail in the constitutions. Almost all constitutions of parliamentary republics in civil law countries contain an article expressly prohibiting the partisan involvement of presidents with political factions.

Disregarding the constitutional conventions and common law traditions about the role of the head of state would render the entire framework and written provisions of the constitutions dysfunctional, the judgment said. It is this reason that while the two systems go about it differently, they ultimately prescribe the exact same role for presidents and monarchs in parliamentary systems of government. The need for a symbolic figurehead who is representative of the state in its majesty is central to the structure of the parliamentary system.

However, Attorney General Irfan Qadir argued that by all means, the president’s office is a political office. In this regard, he referred to the oaths of the prime minister and the federal ministers, which are similarly worded and argued that his oath is no different from that of other holders of constitutional offices.

The judgment said that to seek comparison with other constitutional arrangements, we must also look at other parliamentary republics such as Turkey, Greece, Italy, Germany, etc. Most of these are also federations which help draw closer comparisons with the role of the presidents in these countries. However, these countries have their systems of law based in civilian (Roman) law and therefore different from Pakistan in terms of their constitutional traditions.

The closest comparison can, however, be drawn with countries that are both parliamentary republics and also have their constitutional traditions rooted in the Commonwealth that they were once a part of. These include India, Bangladesh, Ireland, Malta, Botswana, Mauritius, etc.

The role of a president as head of state is almost identical in most parliamentary systems of government. As most of these countries were former constitutional monarchies (including Pakistan until 1956 as part of the Commonwealth), or still are, the position closely mimics the figurative position of a symbolic monarch in parliamentary constitutional monarchies, the judgment noted.

The ruling said that parliamentary democracies today exist in one of two forms. They are either constitutional monarchies or republics. Historically speaking, the monarch represented the state. Parliaments and democracy gained authority through the right to exercise power in the name of the monarch. Ultimately, parliaments became the centres of power and authority with the heads and ministers of government being elected from them. The monarch however, remained the symbol of the state, an icon of its unity and identity, regardless of what faction governed in his name. All functions of state, while exercised and decided by elected governments, were carried out in his name. This included establishing courts, recruiting civil servants, receiving and sending ambassadors, waging war, etc. Over time, many countries deposed their monarchs and replaced them with presidents.

The nature and role of the office of head of state has remained the same, with the governments maintaining the same treatment of dignity, respect and symbolic reverence towards the president as was held for the king. And similarly, the powers of the president have not been available for exercise in his own discretion, but have rather continued to be exercised in his name by elected representatives of the people. The need of a central lynchpin in the political system that represents the state as an entity over and above the partisan squabble of factions and inspires the people as a symbol of sovereign independence has preserved the separation of head of state and government in parliamentary systems.

The ruling said that the parliamentary systems of today are also divided into two great legal traditions of the world. The first is the common law tradition that emanated from the legal developments in England. And the second is the civilian law (or Roman law) tradition that is prevalent in continental Europe and emanates from the Corpus Juris Civilis of Roman Emperor Justinian I.

Within these two great systems of law, there are countries that are parliamentary constitutional monarchies while others are parliamentary republics, the only difference between them being that the first states are headed by monarchs while the heads of state in the latter are presidents. The relationship between a head of state and a government, however, is identical within the traditions.

The common law is a tradition that was built by the rulings and precedents of the common law courts. The common law gives great preference to tradition, continuity and principles of antiquity that are immortalised by adherence. The civilian system, however, is built on textual sources and reflects reliance on recourse to the written law and its textual rather than historic interpretation. This difference is also highlighted by the nature of statutes in the two systems. The common law statutes set a basic premise and depend on precedent for building upon the interpretation and implementation of the law while the civilian system believes in exhaustive codification of principles into writing. This distinction is starkly visible in the mere size of corresponding statutes in either system.

On the other hand, the decision said, the relationship of the British monarch and the British parliament developed and has sustained with the force of practice and tradition. The parliamentary system follows the same configuration between head of state and parliament in the common law world as it does in the civil law world. It however regulates that relationship through constitutional conventions that underpin the system rather than express provisions. Over time, most common law countries adopted written constitutions, yet preserved the unwritten conventions that bind together the codified articles of the constitutions.

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