APPOINTMENT AND REMOVAL OF A GOVERNOR PROCESS & CONSEQUENCES UNDER THE CONSTITUTION

ONE OF THE prescribed functions of the Prime Minister of Pakistan under Article 101 (1) of the Constitution of Pakistan, which is independent as well from the Cabinet's decision or endorsement, is the appointment of a Governor of any Province of Pakistan. Thus it is the prerogative and discretion in other words of a Prime Minister under the Constitution to recommend and forward a name in a Summary to the President of Pakistan for such approval for the appointment or otherwise for removal of a Governor under the Constitution, and the President on receipt of such advice is Constitutionally bound to act only in accordance with the advice of Prime Minister under Article 101 (1) read with Article 48 (1) of the Constitution of Pakistan tendered to him (both in two situations appointment and removal of a Governor). However, the Governor of a Province under Article 101(4) of the Constitution can resign from his office by writing directly under his hand addressed to the President of Pakistan.

The language of Constitution is also very much clear, that though the President of Pakistan is the appointing authority of a Governor in Province under Article 101(1) of the Constitution but he only acts on the advice of Prime Minister, and cannot perform such functions independently under any other Article of the Constitution for such appointment of a Governor or start the process for the removal of a Governor independently without the advice of Prime Minister or to allow the Governor independently to continue the office at his own discretion.

Article 48(1) of the Constitution clearly states that in the exercise of his functions, the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister with only exception that for a limited period which is within fifteen days, the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act within ten days in accordance with the advice tendered after such reconsideration. There is as well no clause of any Article available in the Constitution of Pakistan, which empowers the President of Pakistan to reject the advice of the Prime Minister or Cabinet tendered to him under Article 48(1) of the Constitution of Pakistan.

Through, 18th Constitutional amendment, a proviso has also been added in Article 48(1) of the Constitution of Pakistan by prescribing a period of time limit on President that within fifteen days of such advice received from the Cabinet or the Prime Minister, the President may require the Cabinet or, as the case may be, the Prime Minister to re-consider such advice, either generally or otherwise, and thereafter, the President shall within ten days to act in accordance with the advice tendered after such reconsideration, and he has no further option to delay the matter. The word "shall" has also been used by the legislature intentionally in Article 48(1) of the Constitution, that means the President has no choice except to act and perform relating to such constitutional functions where the Constitution itself has described and bound the President to act in accordance with the advice of the Cabinet and of the Prime Minister of Pakistan as the case may be.

President of Pakistan is performing three types of Constitutional, statutory and legal functions, such as the Constitutional functions on the advice of Cabinet or the Prime Minister as the case may be, the functions empowered by the Constitution of his discretion, where he is independent and has discretion i.e. Article 94, Article 58 (2) of the Constitution and the statutory functions given to him under different statutes. The President has no choice or discretion to deviate from any advice of Cabinet or Prime Minister while performing such functions as the case may be tendered to him under Article 48(1) of the Constitution of Pakistan.

The Governor of a Province cannot even continue a minute of his functions or to remain in office independently, but he has always needed the confidence and will of a Prime Minister for continuation relating to his office as per language and spirit of Article 101 of the Constitution, and the Governor otherwise can be removed at any time by the Prime Minister as such this is not the fixed tenure appointment, and there is as well no restriction imposed to the Prime Minister such functions under the Constitution regarding removal of a Governor.

Further, as per Article 48 (4) of the Constitution, the President's discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever but this is not limited to his functions to be performed by him on the advice of Cabinet or the Prime Minister Article 48 (1) of the Constitution.