On August 20, 2023, President Dr Arif Alvi took to his X (formerly Twitter) account to claim that he had not given his ‘assent’ to two bills that sought amendments to the Pakistan Army Act, 1952, and the Official Secrets Act, 1923. The government had already notified these bills as duly promulgated acts by parliament and even moved to prosecute certain PTI leaders under these amended ‘acts’.
The controversy around the president’s ‘assent’ stems from the following legal background:
1. Article 75 of the Constitution outlines the process for the president’s ‘assent’ to a bill, which is necessary for it to become an act of parliament. The article distinguishes between ‘assent’ and ‘deemed assent’.
2. According to Article 75, the president has 10 days to either ‘assent to the bill’ or return it to parliament with a message requesting reconsideration. If the bill is passed on reconsideration, with or without amendments, the president must give his assent within 10 days. If he fails to do so, his assent is deemed to have been given.
The right to assent to bills is not to be taken lightly.
3. In this case, the president alleges that he did not give his “assent” to the bills. While there may be concerns about his instructions not being carried out, it is important to determine whether this impacts the constitutional requirement of “assent” under Article 75(1)(a). Since the president did not return the bills with a message under Article 75(1)(b), the provisions of Article 75(2) are not applicable.
The key issue to address is whether the president’s failure to return the bills within 10 days, with or without a message, means that he is deemed to have ‘assented’ to them under Article 75.
In the Constitution, ‘assent’ is understood to be an unequivocal intent to support or approve a measure. Usually, assent is expressed through the president’s signature or communicated in writing by his subordinate staff, as per the Government Rules of Business, 1973. It needs to be investigated whether the government complied with this requirement when it notified the bills as acts. If there was no substantial compliance, the bills cannot be considered acts.
It is worth mentioning a few other points about ‘assent’ and ‘deeming’ provisions of law:
1. ‘Assent’ can be expressed either in writing through a signature or through implied means. However, none of these have been invoked in this case, and extending such assents to Article 75(1)(a) would be reading something into the Constitution that is not there.
2. Deeming provisions in a Constitution or law are exceptional and should be interpreted restrictively. These provisions create legal fictions that are not factual, and their interpretation is always cautious in legal systems. In this case, the deeming provisions of Article 75 are limited to the reconsideration of the president’s message under Article 75(1)(b). It is important to adhere to the principle of not reading into the Constitution something that is not written there.
The interpretation of deeming clauses should be logical and not extend beyond the language of the section.
The implications of a “deeming assent” are significant. The president’s right to assent to a bill is an essential part of the Constitution’s checks and balances for the welfare of the common man. This right should not be deemed when the president has expressly stated that he did not assent under Article 75(1)(a).
While the president may be criticized for poor office-keeping or ineffective management, it cannot be alleged that he has abdicated or relinquished his right to assent under Article 75(1)(a). This right should be clear, unequivocal, unambiguous, and expressed in writing through the president’s signature or communicated through his office as allowed by the Government Rules of Business.
The writer is a senior advocate of the Supreme Court of Pakistan.