' UMAR ATA BANDIAL, C J.---Submits that President of Pakistan and Governor of the Province of Punjab have failed to play their role visualized in the first proviso to Sub-Articles (1) and (1-A) of Article 224 of the Constitution ("first proviso") for appointing a caretaker Prime Minister and caretaker Chief Minister Punjab respectively. Consequently, the said appointments made by resort to the alternative mechanism of selection by a Committee under Article 224-A of the Constitution is illegal.
2. By the first proviso, the President is required to consult with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly for appointing a caretaker Prime Minister. The Governor of Punjab has to confer with his corresponding counterparts in the Provincial Government and the Punjab Provincial Assembly as constitutional consultees for the appointment of the caretaker Chief Minister. The relevant provisions of Article 224 are reproduced below: "(1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.
(I-A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care- taker Cabinet: ' Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: ' Provided further that if the Prime Minister or a Chief Minister and their respective Leaders of the Opposition do not agree on any person to be appointed as a care-taker Prime Minister or the care- taker Chief Minister, as the case may be, the provisions of Article 224A shall be followed: ' Provided also that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the caretaker Prime Minister or the care-taker Chief Minister, as the case may be.
3. In the present case, the caretaker Prime Minister was not appointed by consensus under the mechanism laid down in the first proviso to Sub-Article (1A) of Article 224 of the Constitution. He was appointed under the alternate method given in the second proviso to Sub-Article (1-A) of Article 224 of the Constitution, namely, under Article 224-A of the Constitution by selection made by the Election Commission of Pakistan ("ECP"). It is objected in this petition that the method of his appointment in first proviso to Sub-Article (1A) of Article 224 of the Constitution was not exhausted by the President and has been wrongly by-passed by him.
4. Considering the role of President as the Head of State, learned counsel submits that had meaningful consultation been initiated by the President with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, a person may have been selected consensually in accordance with the mechanism provided in the Constitution without the prolonged wait for selection of a candidate through the alternate mechanism of selection by the ECP envisaged in Article 224-A of the Constitution. He adds that the order and priority of constitutional actions envisaged in Article 224 ibid must be pursued with earnest in order to honour the sanctity attached to constitutional provisions. Further submits that the first proviso to Sub-Article (1-A) of Article 224 of the Constitution confers a discretion on the President, for the exercise or non-exercise of which, reasons must be recorded. Relies on Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). In the present case, he submits that failure by the President to act under the first proviso is unsupported by grounds.
5. In the present case, it is a matter of public record that the President sought and awaited the Prime Minister and Leader of Opposition of the outgoing National Assembly to propose a consensual nominee for the office of care-taker Prime Minister. It appears that the requisite consensus did not materialize to the satisfaction of the President; and neither of his consultees have claimed otherwise. In that situation, had the President proceeded to appoint a caretaker Prime Minister who did not enjoy the consensual support of the said two political leaders of the outgoing National Assembly, serious controversy may have erupted to surround the action of the President.
6. A very crucial feature of the Presidential Office is that his actions taken as Head of the State must not attract criticism that is aimed at the President personally. Indeed under Article 41(1) of the Constitution, the President of Pakistan is Head of the State and represents the unity of the Republic.
The judgment of a learned Full Bench of this Court in Pakistan Lawyers' Forum through General Secretary v. Federation of Pakistan (PLD 2011 Lahore 382) holds that the high office of the President of Pakistan is one which is to be discharged with neutrality, impartiality and prudence in order for that office to remain above any controversy whatsoever. Relevant extract of that judgment is reproduced below:-- "The view of the Hon'ble Supreme Court in Mian Muhammad Nawaz Sharif's case that expects neutrality and impartiality to be a quality of the office of the President of Pakistan is predicated on the notion that contrary conduct will bring controversy to the office. That when the highest office of the State becomes controversial then such a state of affairs erodes the unity of the State.
' Since government is the outcome of politics therefore political priorities, principles and objects define governmental action. Proviso to Article 48(1) of the Constitution allows the President of Pakistan by exercise of his judgment to require a government decision to be reconsidered but he cannot reverse the same. Therefore, if there is a bad political decision by the Government, the President cannot be held responsible for it. The constitutional scheme of Article 48(1) therefore operates to protect the President against any political backlash and the executive government alone is made accountable for its controversial decision. It is often that in a scenario of political controversy and turmoil, governments face crises and some may even fall before the political opposition. That the office of the President must survive such crises with pristine neutrality and be a unifying force in the polity is necessary for ensuring smooth transition of the parliamentary democracy to the next government under Article 91(7) of the Constitution. On the other hand in a case where the President himself becomes embroiled in a political controversy or crises that surrounds the government then he becomes equally vulnerable to the consequence of political turmoil, thereby destroying the very purpose for which the lofty office of President is built in the Constitution."
7. Accordingly, to the mind of this Court, the President acted in accordance with the letter and spirit of the Constitution by awaiting a consensus between the two political leaders of the outgoing National Assembly. Failing that, for obtaining a transparent appointment to the office of caretaker Prime Minister, he allowed the resolutory mechanism envisaged in Article 224-A of the Constitution to come into effect. The President acted cautiously and prudently in adopting the said course of action. As such he did not commit any illegality.
8. The petitioner's case with respect to the caretaker Chief Minister Punjab has not been pressed/elaborated during argument. It is deemed to have been abandoned.
9. In view of the foregoing observations, this petition is dismissed.