Amidst the ongoing political turmoil and uncertainty, on the 20th of August, President Arif Alvi took to his Twitter (now formally known as ‘X’) to protest that he did not assent to the Official Secrets (Amendment) Bill, 2023 and the Pakistan Army (Amendment) Bill, 2023. His Excellency protested that ‘(he) asked (his) staff to return the bills unsigned within stipulated time to make them ineffective.’ Further claiming that despite reassurances, his staff undermined his will and command. Pertinently, a number of politicians have been proposed as accused persons in crime reports under one of the Bills while trials of those already arrested for partaking in the May 9th ‘riots’ would, for all sense and purpose, be conducted under the latter.
Against this backdrop, this scribe will deliberate on the constitutional conundrum, in addition to whether any criminal charge is made out against the ‘delinquent staff,’ while presuming the statement of his Excellency as the Gospel’s truth, without delving into any political take or verifying the veracity of the aforementioned claim.
Criminal act or misconduct?
Based on the information readily available on the internet, one of two things could have happened. In the first instance, the delinquent staff member(s) could have impersonated the President and forged his signatures on the Impugned Bills before returning them to the Parliament. In the second scenario, the delinquent staff member(s) merely refused to abide by the orders given by the President.
In the first, said delinquent staff member(s) have committed the commission of the cognisable offences of ‘making a false document’ as defined under Section 464 of the Pakistan Penal Code, 1860 (‘PPC’) which is a kind of forgery and is punishable under Section 465 PPC (Punishment for forgery) with imprisonment of upto 2 years [See M. Imran Younis 2023 YLR 1045 Lahore] and ‘personating a public servant’ defined under Section 170, punishable with 2 years of imprisonment, read with ‘cheating by personation’ 416 PPC, latter being punishable under Section 419 PPC with imprisonment of up to 7 years. In this regard, the aggrieved ought to set the mechanism of the Criminal Justice System into motion by having a crime report lodged against the delinquent staff member(s).
Provided the claim of the Presidential hold-out, the crime reports lodged under one of the Impugned Bills should be quashed considering the overt act which was criminalised by the Bill is, due to the Bill not becoming an Act of Parliament, not a crime.
In the latter, being civil servants, departmental proceedings ought to be instituted against the delinquent staff member(s) and after completion of all codal formalities, they should be dismissed from service.
Constitutional controversy or moral panic
Reverting to the Impugned Bills in question. As per Article 70 of the Constitution of the Islamic Republic of Pakistan, 1973, a Bill may be introduced in either House of Parliament and once approved by that House, the Bill is transmitted to the other House. Once both houses of Parliament have passed a Bill, it is forwarded to the President, by the Parliament, under Article 75 of the Constitution, for assent. The President had 10 days to assent to the Bill. Justice Shahid Anwar Bajwa in Messrs Pearl Continental Hotel, Karachi v. S. Zamirul Haque 2010 PLC 276 Sindh clarified that ‘the moments it received ascent of the President, under Article 75(3) of the Constitution it become (sic) law and is to be called as an Act of Majlis-e-Shoora (Parliament).’ [Also see 19 Member Bench Judgement of District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 @ Para No. 64]
The controversy here is that the President claims that he did not assent to the Impugned Bills. Generally, in this circumstance, the Bill is returned to Parliament with a message requesting that it be reconsidered and any specific recommendation or amendment be made therein.
It is then up to the Parliament to hold a joint sitting (procedure whereof is provided under Article 72 of the Constitution) and will, with or without amendment to the Bill, vote on it. If the Bill is approved again by both Houses, it is again to be presented to the President and the President has 10 days to assent to the Bill, failure whereof leads to the Bill being deemed to be assented by the President. In either eventuality, the Bill be become law and will be called an Act of Parliament as provided under Article 75(3), Constitution.
Since the Head of State, i.e., the President, claims that the Impugned Bills were not signed, as such, the Impugned Bill should have been returned to the Parliament for holding a joint sitting. In the absence of holding of joint sitting as stipulated under Article 75(2) of the Constitution, neither of the Impugned Bills can be considered an Act of Parliament.
Said Impugned Bills can also not be deemed to be Acts of Parliaments, as is being claimed by some members of civil society. This is because, as explained above, in order for a Bill to be deemed to have acquired the assent of the President, the Bill needs to be returned to the Parliament who are bound to hold a joint sitting and only when the Bill is passed again is the assent of the President not required for the Bill to become an Act of Parliament. This is because, as per Article 75(2) of the Constitution, the assent of the President is deemed to have been given after lapse of the 10-day duration.
If anything, the claim made by the Head of the State, although has stirred up quite a lot of media speculation and admonishment for all involved by society at large, in actuality, however, it is nothing but mere moral panic by civil society.
Furthermore, it is imperative that the Head of a State, instead of taking recourse to X (Twitter), ought to take stringent and decisive action against his delinquent staff member(s). Further, provided the claim of the Presidential hold-out, the crime reports lodged under one of the Impugned Bills should be quashed considering the overt act which was criminalised by the Bill is, due to the Bill not becoming an Act of Parliament, not a crime.