The United Kingdom’s constitution is uncodified. Theoretically, all legal powers are exercised in the name of the monarch, currently the Queen. The Queen enjoys wide powers, including the power of the appointment of the Prime Minister. There are no bars to the power penned down in the Constitution or a statute, so the Queen may choose any person in the world to be the Prime Minister, but this has never been done.
The Queen is bound by a constitutional convention, and the appointed Prime Minister is always the person who is best placed to command the confidence of the majority in the House of Commons. More often than not, it is the leader of the political party which wins a majority of the seats in an election. Even where there is a political impasse, for example when there is a hung Parliament, the monarch leaves it to the politicians to come up with a solution, rather than act in an arbitrary manner or in a completely discretionary manner, for instance the appointment of Winston Churchill in 1940.
When it is clear as to who commands the confidence of the majority in the House of Commons, the exercise of the Queen’s power is mechanical. Let’s take the example of Theresa May or Boris Johnson: both were the leaders of their party, and when their party was in majority in the House of Commons, they were appointed to the Prime Minister’s office without any commotion. This all happened in a democracy where the rules were not predefined and written.
Pakistan, of course, could not work with a monarch. We are a republic and the preamble to our Constitution clearly states that the sovereignty over the entire universe belongs to Almighty Allah alone, and the authority of the republic is to be exercised by the chosen representatives of the people. Nevertheless, for the parliamentary system to work, the Islamic republic must have had an impartial and non-partisan head of the state, unlike a monarch, the symbol of the unity of the federation and in whose name all the powers of the republic were to be exercised. In our constitutional scheme this job was subscribed to the President. This is also the reason that a President, who is seen as impartial and of unimpeachable integrity can only be removed from office on grounds of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct, and that too by a two-thirds majority of a joint sitting of Parliament, the sort of majority by which the Constitution itself can be amended.
Nevertheless, unlike the UK, in our system of constitutional governance, the President’s powers have been limited and the President has to act in accordance with the advice of the Cabinet or the Prime Minister. In the same way, unlike his counterpart in the UK, the President is not free to appoint anybody as the Prime Minister, but a candidate that has been elected by the votes of the majority of the total membership of the National Assembly. Once that is done, it is the constitutional responsibility of the President to call on the winning candidate, commanding confidence of the majority in the National Assembly, to assume office as the Prime Minister after taking oath before the President. The President then also has to take an oath from the ministers chosen by the Prime Minister to be a part of his cabinet. The President has to set aside any political misgivings and enmity and act as per the Constitution.
Since 2008, when democracy returned to Pakistan, Pervez Musharraf administered an oath to his political nemesis: so did Asif Zardari and Mamnoon Hussain. It is unfortunate, that despite a constitutional directive, this was not done in Pakistan when the President did not administer an oath to the Prime Minister elect Shahbaz Sharif citing health issues, and despite absence of a constitutional directive this principle has never been breached in the UK.
Just as in the federation, in the provinces an impartial and non-partisan Governor sits as the head of the province. The executive authority of the province is exercised in his name, but he has to act on the aid and advice of the Chief Minister and his cabinet. Just like the President, the Governor too is bound by constitutional directive to administer an oath of office to a Chief Minister who has been elected by a majority of the total membership of the provincial assembly. The governor has no powers under the Constitution to act as an investigator, neither does he possess any veto powers of the directives of the elected provincial assembly. Once Hamza Shahbaz Sharif was elected by the provincial assembly and notified as such, the Governor was under a constitutional responsibility to call him to assume the office of the Chief Minister and take an oath before him.
I do not know if, by the time that this column is published, the Governor would have taken an oath from the Chief Minister elect or whether he would be removed by then. But this entire scenario does beg a question: when in the UK the monarch has never violated an uncodified constitutional convention, why is that in our Islamic republic, it is violated by the President and the Governor despite codified constitutional positions?
