Daily Times

The idea of a representative democracy, pithily narrated by Abraham Lincoln as “government of the people, by the people, for the people”, runs throughout the constitutional fabric of Pakistan since 1973. The fathers of the Constitution lay down in its preamble: “The state shall exercise its powers and authority through the chosen representatives of the people.”

Much ink has been spilled by proponents and opponents of a presidential form of government. The debate over its merits and demerits is raging. As things stand, the president of Pakistan is no more and no less than a ceremonial head of state and representative of the unity of the republic, as per Article 41(1) of the Constitution. The prime minister is at the helm of affairs of the federal government. He exercises the executive authority in the name of the president. In theory, president is the wellspring of power. Practically speaking, he is a symbolic figure and cannot act on his own.

To state the obvious, the Constitution of Pakistan is a hybrid one, drawing heavily both on the British parliamentary form of governance and the American presidential form of governance.

As soon as the PTI took reins of government following the election, Imran Khan picked and appointed special assistants and advisers to assist and advise him on various matters. Curiously, they were accorded either the powers and status of a minister of state (junior minister) or a federal minister, giving rise to a key question whether we are hurtling towards a presidential form of governance or not. As it is, there are five advisers to the prime minister with the powers and status of federal ministers according to the National Assembly website. As far the special assistants, there are 13 of them at the time of writing; four of them have been given the powers of ministers of state.

It goes without saying that both the advisers and the special assistants are neither members of parliament nor are they the part of the federal cabinet according to the current constitutional scheme. This begs the question whether the advisers or special assistants to the prime minister can be accorded the status and powers of ministers or ministers of state under the Constitution. To answer this question, let us have an overview of the Constitution, the relevant Rules of Business, 1973, and the case law, laid down in this regard by the superior Courts.

It is worth mentioning that the federal cabinet consists of ministers with the prime minister in the saddle.

The fact that Articles 90 and 91 vis-à-vis federal government and cabinet do not include ‘advisers to the prime minister’ and ‘special assistants to the prime minister is of immense significance. Article 92 states in categorical terms that the appointments of federal minister(s) and minister(s) of state shall be made from amongst the members of parliament. However, with the incorporation of Clause 9 to Article 91 and insertion of specific words ‘subject to Clauses 9 and 10 of Article 91’ in Article 92 by way of the 18th Amendment (2010), the proverbial sting has been taken out of the original provision. In other words, its stringent consequences have been effectively blunted and watered down.

Before the amendment, a prime minister could not accommodate ‘outsiders’. However, post-amendment, the prime minister is vested with ample power to appoint any person as a minister for a period of six months regardless of the fact that the person is or is not a member of the National Assembly. Differently put, prime minister can fill in a particular ministry with a number of different people after the expiry of every six months if he likes to. If that minister does not become a member of the National Assembly for a consecutive period of six months, he would automatically cease to hold the office and shall not be appointed as a minister again before the dissolution of the assembly unless he is elected as a member of that assembly, Article 91(9) states. The proviso carves out an exception, excluding a Senator from its four corners.

Before entering upon the office, it is incumbent upon a federal minister to take the constitutional oath provided under the third Schedule to the Constitution pursuant to Article 92(2).

Articles 93 deals with the appointment of advisers to the prime minister. Needless to say, the original constitution did not contemplate these appointments. The honourable former judge of the Sindh High Court, SA Rabbani, traces the origin of adviser(s) to the prime minister and chief minister in a seminal, landmark case reported as Ahmad Yousaf Ali Rizvi and others vs Munawar Ali Butt and others (PLD 2000 Karachi 333).

The status, powers and rights of a federal minister or a minister of state cannot be conferred upon unelected advisers and special assistants to the prime minister

It bears mentioning that Article 93(1) speaks of two things in relation to the appointment of advisers: firstly, empowering the prime minister to appoint adviser(s) and secondly, placing fetters on his power not to appoint them beyond a certain number. When it comes to the appointment of advisers, on the face of it, the president enjoys absolute and unfettered power; he can appoint any person, regardless of the fact that he is a member of the parliament or not. It is left entirely to the sweet will of the president to determine the terms of an adviser. However, the power vested in the president is to be exercised according to the constitutional scheme and not brazenly and arbitrarily.

Seemingly, the underlying intention of this provision of the Constitution is to accommodate highly educated and qualified people working in various walks of life who could not be elected as members of parliament for one reason or another or do not want to indulge in electoral politics. However, party loyalists are now being welcomed to join the ranks under this provision, thereby defeating its real purpose. As for the restriction envisaged by the constitutional provision, it limits the PM’s power to appoint advisers in respect of numbers. In other words, the maximum number of advisers a PM may appoint at a time is five. Any appointment beyond the limit set by the constitution would be unconstitutional.

Article 93 goes on to confer the same right upon advisers to the prime minister as envisaged by Article 57; they enjoy the right to speak and participate in the proceedings of either house of parliament, or a joint committee or any committee thereof as a member.

Let us now discuss the special assistants to the prime minister. Although the Constitution in its interpretation clause, Article 260, does make an oblique reference to special assistants to the PM, it is completely silent regarding their appointment. To supply this omission, Rule 4(6) of the Rules of Business, 1973 comes in aid of the prime minister. Having discussed ministers, advisers and special assistants at length, it would be worthwhile to contrast advisers and special assistants with ministers. The first line of demarcation between them is that unlike ministers, advisers and special assistants are not part of federal government. This being the case, they cannot be vested with any ‘executive authority’: a delegate cannot further delegate. The second big difference is that they don’t take the constitutional oath. Thirdly, what makes them poles apart from ministers is the fact that they are not collectively responsible to parliament in terms of Articles 91(6).

These stark differences have been thrown into bold relief in a recent judgment of the Sindh High Court reported as Fareed Ahmad A Dayo vs Chief Minister Sindh through Principal Secretary and five others (PLD 2017 Sindh 214) (DB).

In a nutshell, the status, powers and rights of a federal minister or a minister of state cannot be conferred upon unelected advisers and special assistants to the prime minister, nor can they sit in or participate in cabinet meetings conducted by the prime minister. One wonders if Prime Minister Imran Khan is honouring the Constitution more in the breach than in the observance by granting the status of federal ministers to his advisers and that of ministers of state to his special assistants. During his election campaign, Khan used to promise to hold aloft the banner of the rule of law when he would come into the power. Lamentable as it is, post-election, he is falling foul of the law of the land.

The writer is a lawyer