Legal debate rages over president’s ‘deemed assent’

KARACHI: The fate of the Official Secrets (Amendment) Bill, 2023, and the Pakistan Army (Amendment) Bill, 2023 will eventually be decided by the courts, say legal experts, most of whom also say that the president returning a bill without comment or signature in the first round of presidential approval does not amount to assent.

Supreme Court advocate Salman Raja says that, while the government is evidently considering the two bills as law since it has notified them, this issue will “end up in court eventually”. Calling the law ministry and the government’s stance on the matter “interesting”, Raja says that the ministry’s “statement is a big giveaway. What it means is they don’t have a document with the president’s signature on it, and that since he did not return the bills within 10 days, they should be deemed to have become law.”

According to Raja, this is an incorrect reading of the law: “if you look at Article 75(1) there are two stages: the first stage is where the president returns the bill either with a comment or for a more general reconsideration. In this case, a joint session then looks at the bill and if it is then again sent to the president and if he again doesn’t sign it within 10 days it is deemed to be assented to. The deemed part comes only in the second round so there can be no deemed assent in the current situation.”

Former attorney general Ashtar Ausaf Ali, however, told Geo’s Shahzad Iqbal on Sunday night that if the “rules of business are read with the constitution, then one comes to the understanding that any directives issued by the PM or the president should be in writing. If they are not in writing, they have no standing.” Ali added that “the president in Pakistan does not have veto power in matters of legislation.” He also added that “the president has the obligation to give his reasons in 10 days for returning a bill; if he does not then he is deemed to have consented.”

Lawyer Reema Omer is of the opinion that Article 75 does not provide for deemed assent in this case. In a tweet/post on Sunday, Omer said: “President Alvi says he did not give assent to AA/OSA amendment bills. Gov[ernment] confirms he didn’t give assent. Art 75 doesn’t provide for ‘deemed assent’ if president fails to give assent within ten days in the first instance. How can these two bills be considered acts of parliament?”

Omer adds to her Twitter/X post that: “It is correct Article 75 requires the president to either assent to a bill or refer it back to parliament in ten days (in the first instance). If he fails to do so, he is in breach of his constitutional duty. However, it doesn’t mean assent is ‘deemed’”.

Lawyer Waqqas Mir says that both the laws “are open to a credible challenge regarding their status as enforceable legislation”. As for the question of assent, he says that “there is a factual dispute about what the president instructed his staff to do. If they violated his instructions then the president has given no assent”.

PILDAT President Ahmed Bilal Mehboob, in a vlog posted on Sunday, has said that there “must be some record of any instructions given by the president to his staff”, while also pointing out that it is a bit “premature” of the president to apologize to those affected by the laws “since if the president did not sign them and did indeed wish them returned then...instead of apologizing the president needs to think of legal proceedings against his staff if they did indeed not follow his instructions.”

Mir echoes Mehboob regarding the president’s apology, saying his tweet/post “ends on a peculiar note... He sounds defeatist and seems to accept this is now the law; however his beliefs -- regardless of sincerity -- won’t turn these bills into a law if a court determines he never assented or that his instructions were violated.” Saying that the “whole affair represents an embarrassing breakdown of the relationship between the presidency and other branches of government”, he also adds that the issue now “requires a determination of facts. What were the president’s instructions? Were they followed? Who carried out the instructions? What comments if any accompanied the returned draft? The government needs to be transparent about what exactly happened. At his end, the president can invoke the advisory jurisdiction of the Supreme Court.”

Meanwhile, political experts on Sunday also pointed to the more than 24 hours that it took the president to realize the bills had become law, something they say is odd given how much media attention the story had received, and the trolling the president had been subjected to online regarding the two laws.

For lawyer Jahanzeb Sukhera, “what we see now is a constitutional lacuna being exposed. Prior to 1985, the constitution said that the president must assent within seven days, and if he does not, then it would be deemed that he had assented. However, after the Revival of the Constitution Order of 1985, this provision was amended. The amendment appears to have the effect of deleting the deemed assent concept from the first stage...The deletion is likely to be interpreted to mean that the concept does not apply at that stage.”

Barrister Rida Hosain says that since “An unsigned bill does not automatically become the law”, both the Pakistan Army Act and the Official Secrets Act amendments “cannot be considered valid. In fact, they never became effective pieces of legislation. To say that an unsigned bill by default becomes valid is to make the scheme of Article 75 redundant.”

Barrister Ali Tahir does not agree: “the bills have already become law as the president never sent them back within the stipulated ten days. Whether a bill is signed or unsigned will make no difference after the ten day limitation, as the bills would be deemed to have become acts of parliament.”

Supreme Court advocate Basil Nabi Malik feels that in the current situation, “there is no contention as to the fact that the president has not signed his assent. That has essentially been settled by both sides”. Malik offers a third situation, asking: “what happens if the president keeps the bills on his table for more than 10 days and then locks the door and goes away on a break? Then you have a situation where it has not been returned or assented to. That is where the government is saying the current situation stands.”

Sukhera adds a further twist to what could happen in court: “it is possible that the courts find that the president has a veto power whereby he can refuse to allow certain bills to become law. It is also not a bad thing to discover. The president being able to act as a check on federal legislative power may require coalition government partners to cooperate for longer, amongst other possible benefits.”

How will things move now? Raja says that it is now up to the “law ministry to prove that in the past assent to a bill has been given by the president without signing the document. So the onus is on the law ministry to establish why they considered this to be assent. Or to see whether the staff of the presidency issued some notification that made it seem assent had been given -- in which case the staff would have to establish how they came to that conclusion.”

Hosain also mentions the courts, commenting that “the constitution is silent on the consequences if the president fails to act. The courts can be approached to require the president to fulfill his legal obligation. However, an unsigned bill in and of itself does not and cannot become the law”.

Malik however finds the issue ending up in court an inevitability that comes with its own issues “because the judiciary in itself is an unelected body and that unelected body passing judgments over such issues or parliamentary processes is a problem.”

But for Tahir, “the bills have become law and now only the new parliament can repeal it, or it may be done through an ordinance but since the caretaker government is already in place that would be unconstitutional, as their powers vis-a-vis lawmaking are extremely limited.” He reiterates that the president “cannot hide behind his staff, especially since he came out publicly only after the stipulated constitutional time.”