Unelected 'ministers'

ARTICLE: One of the objects of a written constitution is to lay down rules for exercise of state power. The executive branch of the government derives is legitimacy from consent expressed through elections held in accordance with Constitution and law. Constitutional theorists and political scientists, in the light of the long history of abuse of power by monarchs and elected dictators, have evolved mechanisms to place checks on power. In a parliamentary democracy, the principle of legitimacy for the exercise of executive power requires two things: the Prime Minister and his cabinet must be members of Parliament and secondly, the Prime Minister and his cabinet are collectively responsible to Parliament. The Prime Minister is the Chief Executive i.e. the head of the executive branch of the Government. Powers and functions of the executive are to form policies and implement laws. The extent of their executive domain is co-extensive with the legislative authority of Parliament in a federal system. There is however a difference of opinion amongst the constitutional experts whether a prior legislation is necessary for the exercise executive authority. The relevant issue is the manner of exercise of power. Under Article 90(1) of the Constitution, the executive authority of the Federation (in contradistinction to the provincial) is exercised by the federal government consisting of Prime Minister and the Federal Ministers who act through the Prime Minister. Under Article 90(2) of the Constitution, in the performance of his functions under the Constitution, the Prime Minister shall act directly or through Federal Ministers but not the vice versa. Article 91 envisages a Cabinet with the Prime Minister at its head to aid and advise the President in the performance of his functions. The expression, 'aid and advise' is a recognized constitutional expression.

There is no dispute over the point that whether the President performs a constitutional function or a function under a law in both situations, he is to act on the advice of the Cabinet (Prime Minister/ Federal Minister or a Minister and who will again act through the Prime Minister). The Supreme Court in the Mustafa Impex case (PLD 2016 SC 816) seems to have failed to recognize this aspect of the matter and the object and difference between Article 90(1) Article 91(1). Under our Constitution, the Prime Minster is the bedrock of the federal government and Cabinet. The Cabinet is a body formed under Article 91. The federal government is a larger body. Cabinet, including the Prime Minister who is the Chief Executive of the Federation, is the head of the Federal Government are only a constitutive part and not the whole. Federal Government if equated with the Cabinet obviously excludes President and other constitutional officials and state functionaries from the Executive and federal government. On the contrary, all actions by the federal government under the Constitution and in relation to the Federation are taken in the name of the President. It is thus incorrect to suggest that federal government is the Cabinet only. Prime Minister acts on his own and advises the President without the Cabinet and Article 243(4) recognizes this position. In fact, under Article 90 'act through the Prime Minister' was not considered in the Mustafa Impex at all. In the exercise of his constitutional functions the President is to be advised by the Cabinet. In matters relating to the executive authority of the Federation an action is taken by the federal government in his name; the Minister concerned makes the decision. The scope of Articles 90 and 91 can be explained and reconciled this way. Moreover, Article 91 envisages a Cabinet and its composition. It was not part of the original Constitution and was added by P.O. 14 of 1985. It is nowhere provided that Cabinet must make a collective decision. Even a minister can advise the President and that would amount to an advice on behalf of the whole Cabinet.

Thus, the executive authority of the Federation cannot be exercised by a person other than the Prime Minister or a Federal Minister. Functions of the federal government under the Rules of Business framed under Article 99 (3) cannot be delegated or assigned to persons other than the Prime Minister, a federal minister and a Minister of State. A Special Assistant to the Prime Minister (SAPM) cannot perform those functions. Status of a Minister or Federal Minister cannot be conferred upon SAPM nor can he sit in the Cabinet meetings for the following reasons:

Under Article 90, the executive authority of the Federation can be exercised by the Prime Minister and Federal Ministers who are bound to act through the Prime Minister. The present provision is a departure from all earlier formulations prior to 1973 constitution where a Minister could act in the name of the President under the principle of responsible government. Since Z. A. Bhutto, wanted a Prime Ministerial system, therefore, ministers were bound to act through the Prime Minister, otherwise, it would undermine the authority of the Chief Executive. Secondly, in the definition of the Cabinet, Advisors and SAPMs are not included. Constitution does not provide the holding of Cabinet meetings. It is a convention. Under the English Constitutional practice even a minister can aid and advise Her Majesty Queen in her functions and that shall be treated as an advice of the Cabinet. Advisors and SAPMs do not figure for advice. Thirdly, the principle of collective responsibility is applicable to the Prime Minister, federal ministers and ministers of state who have to be members of Parliament under Article 92(1). Fourthly, since the Prime Minster and Cabinet cannot delegate their powers and functions under Articles 90(1) and 91(1), therefore, SAPMs cannot perform functions expressly conferred by the Constitution on the Prime Minister or Ministers, and finally; since the responsibility before Parliament and public is that of the Prime Minister, federal ministers and ministers of state, ultimate authority to make decision(s) in respect of all matters is that of the Prime Minister or Ministers. Moreover, by conferring the status of Minister upon a SAPM, he does not become a member of the Cabinet and attend its meetings. Finally, SAPM does not swear an oath to preserve, protect and defend the Constitution. His acts have no immunity under Article 248.

SAPM is an assistant who cannot resume the authority of principal. To elevate such a person to the high office of a minster and confer upon him the status of a minister and to allow him to perform functions of a Minister with all the perks and privileges of a minister amounts to undermining the Constitution and rule of law.

(The views expressed in this article are not necessarily those of the newspaper)