Committee led by Cabinet Secretary all set to approve amendments to Rules of Business

ISLAMABAD: The Secretaries Committee headed by the Cabinet Secretary is all set to approve amendments in Rules of Business 1973, aimed at enhancing government’s effectiveness and containing the roles of SAMs/ Advisors in accordance with judgement of Islamabad High Court (IHC), well informed sources told Business Recorder.

A Sub-committee was constituted, comprising Secretary Maritime Affairs (Convener), Secretary Privatisation Division, Additional Secretary (in-charge) Industries & Production Division and Special Secretary Cabinet Division, to study/ examine the report “Enhancing Government Effectiveness - a Critical Systems Approach”, presented in the Secretaries Committee in December 28, 2023 and submit its recommendations to the Cabinet Secretary to place the same before the Secretaries Committee in its next meeting.

In the absence of specific ToRs, the sub-committee decided to frame its own ToRs as follows: (i) grasp the purpose of the report identify the problem(s), the solutions provided to address the problem(s) and its linkage with the Rules of Business’ 1973; (ii) examine the report and incorporate the actionable/ doable items in its recommendations; (iii) examine the issues, identified from time to time, in the Rules of Business, 1973 and suggest remedies; (iv) examine the Rules of Business, 1973, in the light of Mustafa Impex case and the constitutional scheme provided in Articles 90-99 and Federal Legislative Lists’ and provide solutions to the gaps/ conflicts between the constitutional scheme and the Rules; and (v) propose recommendations to strengthen the office of the Cabinet Secretary and make the Secretaries more responsible and accountable.

In order to grasp the purpose of the report, the Sub-Committee met with Musharaf Rasul (author of the Report) on January 4, 2024. It was explained that the purpose of the Report was to improve the quality of summaries and proposals submitted to higher forums. Their poor quality ensured process compliance though this resulted in inordinate delays and sub-optimal decision, as well as poor policy outcomes. Focus on outcomes can only be achieved with improved quality of cases/ summaries.

However, real change requires a holistic approach through improvements in training, performance evaluation and promotion mechanisms. He also added that the purpose of introducing standardised formats was to push the human resource at the middle of quality continuum towards the higher end.

It was also acknowledged that it would not be possible to develop standard formats for all possible cases. However, some oft-repeated cases like appointments, proposals for legislation, approval of rules, MoUs, supplementary grants’ requests, etc.; can be identified and formats can be developed for such cases.

It was suggested that these formats/ templates may be prepared, incorporated in e-Office and shared with all Ministries. The idea was agreed and acknowledged by the Sub-Committee.

The Sub-Committee examined the report and identified some basic issues contained therein while recognising some pertinent issues highlighted therein. Some of the key points are as follows: (i) Rules of Business 1973, framed under Article 99(3) of the Constitution, provide for the allocation and transaction of the business of the Federal Government as required under the said Article. Further, the details regarding the manner of disposal of business are contained in Secretariat Instructions 2004. Notwithstanding Rule 18(3) of the Rules of Business 1973 which mandates the Cabinet Secretary to prescribe the form in which summaries shall be prepared, the mandate of the Rules of Business is restricted to the extent of the above-mentioned Article; (ii) forum of CCI and conduct of business therein is alien to the Rules of Business, 1973 as CCI has framed its own Rules of Procedure under Article 154 of the Constitution. Secondly, CCI’s mandate is provided in the Constitution (FLL-II) and cannot be altered, without constitutional amendment, by an executive order. It is clarified that CCI cannot be considered as Government (either Federal or Provincial); (iii) the proposal regarding assigning SAPMs/ Advisers the authority to dispose of business on behalf of the Prime Minister is against the constitutional provisions contained in Article 91 and judgment of the Islamabad High Court (IHC) whereby it was held that Advisers/ SAPMs cannot exercise any executive authority; reference to the UK government model in the Report is not relevant to Pakistan’s case; (iv) regarding the proposal to de-congest the higher forums by the constitution of a Case Clearance Committee, it was unanimous opinion of the sub-committee that the said committee will not only add another layer of hierarchy but also, given the Mustafa Impex judgment, the powers of Cabinet cannot be delegated. It was agreed that the replacement of the expression “Federal Government” with appropriate authorities, as already directed by the Cabinet on different occasions, will go a long way in de-congesting the forum of the Cabinet and its Committees. It was also highlighted by the sub-committee that the gate-keeping function, to de-congest higher forums like the Cabinet and its committees, is already being performed by the Cabinet Division and return of summaries, in a large number, not only endorses the said function but also speaks about the quality of work carried out by Ministries/ Divisions. The sub-committee recognised the need for maintaining a Division-wise database of such summaries; (v) it was acknowledged by the sub-committee that the issue, identified in the report, regarding Inter-Ministerial consultations needed amendments as there was no restriction/ time limit imposed by the Rules to offer comments on a proposal shared by a Ministry/ Division.

The sub-committee recommended amending Rule 8 accordingly. A platform can be developed in e-Office which can serve as a tool for reminding and sending reminders to the Secretaries concerned for time limit inter-divisional consultation cases; (vi) the sub-committee was of the view that the issue of Inter-Ministerial consultations can also be resolved through the forum of the Secretaries’ Committee (Rule 9). It was further resolved by the sub-committee to amend Rules 9(5) and 9(6) to make it more explicit and effective; (vii) it was identified in the report that untracked pendency is due to delays in Inter-Ministerial consultations; deadlock between Ministries over issues; and certain cases not being brought on the agenda of the Cabinet (or its committees) or not being disposed off by PM office. While the sub-committee observed that a solution for deadlock is already available in the Rules of Business whereby contrasting views (even between the Minister and the Secretary and also among Ministries) can be placed before the relevant forum (Cabinet, its committees or PM) for resolution.

The sub-committee was of the opinion that approval of the agenda rests with the Chairman of the Cabinet (or its committees); however, the sub-committee could not find evidence of such agenda(s) from the concerned; (viii) the report has also proposed that instead of Inter-Ministerial consultations, which consume a lot of time, a mechanism for joint preparation of a case may be developed whereby all concerned Ministries may sit down and develop a consensus proposal or set of options for a decision of the competent authority. This, as per the report, will save time and bring efficiency.

The sub-committee considered this proposal and was of the opinion that it would become difficult, in most cases, to arrive at a consensus and would also involve issues like correct recording of the views of the Ministry (ies) in the consensus proposal.

Thus, in the view of the sub-committee, seeking the views of concerned Ministry (ies) remains a better option whereby a clear and concise view of the Ministry would be available on record and it would be difficult to shy away from the same during the implementation phase.

If the issue related to delays in Inter-Ministerial consultations can be resolved, as suggested above, the existing rules can bring the desired efficiency; and (ix) the proposal to maintain databanks, by various Ministries, was endorsed by the sub-committee with the addition that data, especially big data, needs to be made available in user- friendly formats e.g. instead of in PDF format. It would be appropriate if the same is made available in CSV format for the concerned ministry to use it as per its requirement.

As far as databank, containing all decisions of the Cabinet (and its committees) in the past, was concerned it was observed that invariably the decisions of the Cabinet (or its committees) need to be read in conjunction with the relevant summary on which the decision was taken.

Thus, the database would not only require decisions of the Cabinet/ Committees, which are secret in nature but also the relevant summaries which raises another question as to whether the summaries, being SECRET documents, can be shared with other Ministries. In this regard, Rule 24(8) provides that after cabinet discussion has taken place, “each Secretary shall decide whether the case should continue to be classified as secret and inform the Cabinet Division of his decision”. It is possible to provide an option in the database to request another Secretary to allow access to an old Summary if required. This request for access should automatically be conveyed to the Secretary concerned to allow access or continue to keep it a secret.

Any decision in this regard should also be shared with the Cabinet Division as specified in the rule. It was also suggested by the committee that the development of such a database would require it to be accompanied by its “searchable” feature and insertion of case numbers and keywords to make it more effective and a similar database exists in Supreme Court which can also be studied while developing a similar database.

Article 99(3) of the Constitution provides “The Federal Government shall also make rules for the allocation and transaction of its business”, while Article 90 (1) provides a mechanism for the exercise of executive authority of the Federal Government “the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers”.

Thus, the exercise of executive authority of the Federation is a constitutional mandate of the Federal Government, which consists of the Prime Minister and the Federal Ministers.

The same has been re-emphasised by the Supreme Court of Pakistan in its judgment reported as PLD 2016 SC 808 which has re-defined the Federal Government as the Federal Cabinet. In view of the above constitutional dispensation, it is the which has the mandate to exercise the executive authority of the Federation by framing policies on subjects listed in the Federal Legislative List (Part I) of the Fourth Schedule of the Constitution, in the manner as provided in the Rules of Business, framed under the Constitution.

The Sub-Committee observed that owing to a loose definition of Federal Government till the pronouncement of judgment of the Supreme Court in 2016, the role of Cabinet has been diluted and the power seems to have been concentrated in the Prime Minister.

Thus, the Rules of Business need to be amended to bring them in conformity with the constitutional scheme which envisages a Cabinet form of Government instead of Prime Ministerial form of Government. The sub-committee was also conscious of the principles enunciated by the Supreme Court in its judgement regarding the definition and constitutional role of the Federal Government besides some issues being faced by Administrative Secretaries in day-to-day functioning.

Thus, the rationale for amending the Rules of Business, 1973 stems from the following: (i) moving towards a Cabinet form of Government by empowering the Cabinet as per the constitutional scheme; (ii) principles enunciated by the Supreme Court in its judgement; and (iii) issues faced by administrative Secretaries and the Prime Minister’s Office while handling summaries for the Prime Minister/ President/ Cabinet.

After explaining the background of the matter, the Sub-Committee has recommended changes/ amendments in the existing Rules of Business for efficient administration, compliance with the Supreme Court’s judgement and more importantly bringing transaction of the Government’s business in line with the constitutional dispensation by empowering the Cabinet in its primary function of policy formulation.

The following recommendations, prepared after due deliberations, will be considered by the Secretaries Committee headed by Secretary Cabinet, in its forthcoming meeting: (i) business allocated to each Division, as provided in Schedule II of the Rules of B- 1973, needs to be updated by each Division.

The sub-committee proposed constitution of a three-member member Committee comprising the Cabinet Secretary, Establishment Secretary and KAGB to update the business allocated (Schedule II) to each Division in consultation with the concerned Secretary of the Division, especially keeping in view the Federal Legislative List (Part I); (ii) the three member Committee may also update Schedule III (List of Attached Departments) in consultation with the concerned Secretary of the Division; (iii) the sub-committee has suggested that similar schedules may also be inserted in the Rules of Business, 1973 containing lists of Statutory Organisations, Companies/ SOEs (under a Division’s administrative control), Regulatory Authorities, Organisations created by Executive orders/ Notifications, and/ or any other such organisations. This would provide the necessary visibility of all organisations in the Federal Government; (iv) similarly, Schedules V-A and V-B and VI need to be updated.

A committee comprising Law Secretary, Secretary Parliamentary Affairs and Special Secretary Cabinet Division may like to undertake this task in consultation with concerned Secretaries, if needed: (v) the sub-committee observed that Rule 27 needs elaboration and also the existing practice needs to be aligned with the Rule or vice versa. It was agreed by the Sub-Committee that any amendment in an existing legislation that changes the purpose and/ or entails major structural changes in the Act/ Ordinance as determined by the Law & Justice Division also needs the approval of the Cabinet under rule 16 (1) (a) and proviso under Rule 27(1) needs clarity/ amendment.

Similarly, the practice of seeking the views of Law Division and getting the draft vetted prior to seeking approval of the Cabinet under Rule 16 (l) (a) is not in accordance with the scheme envisaged in the Rules (Rule 27). This needs to be aligned either by amending the practice or by amending the rules as may be advised by the Law Secretary: (vi) the Sub-Committee also agreed that explicit instructions, regarding consultations with provinces, were not available in the Rules and thus need to be inserted and a mechanism (the level at which the Federal Government or its Divisions may seek views) needs to be provided in the Rules; (vii) Cabinet Secretary may like to issue instructions, from time to time, to the Secretaries regarding the issues confronting while cases are submitted to the Cabinet (or its Committees) which would provide a check-list for the Secretaries before submission of cases to the Cabinet/ Prime Minister; (viii) the Sub-Committee has also recommended that data of all summaries, submitted by each Division, should be shared in the monthly meeting of the Secretaries Committee indicating the total number of summaries, the number of summaries returned by Cabinet Division, the number of summaries considered and number of summaries which were approved; (ix) a database in an easily accessible format (e.g. CSV, dta) may be made available on the website of Pakistan Bureau of Statistics and linked with e-Office for use at the time of policy/ decision making ;(x) Cabinet Division should prepare and share, after approval of the Secretaries Committee, with all Secretaries sample summaries in routine/ repeated cases such as appointments, proposals for legislation, approval of rules, MoUs, supplementary grants’ requests, etc.

The templates may also be uploaded on e-office. This list can later be expanded by the Cabinet Division; (xi) Rules 15 and 16 need to be revised in consultation with the Prime Minister’s Office especially bringing Rule l5(l) (a) and Rule 16(l) ( j) in conformity so that it is clear that policy formulation rests with the Federal Government/ Cabinet. Cabinet Division, with the approval of the Prime Minister’s Office, may issue clear instructions that different orders (e.g. appointment of Directors of the Board of SOEs) issued from time to time for submission of cases, for approval of the Prime Minister but not covered under rule l5(l) are withdrawn forthwith; and (xii) a committee comprising Secretary Privatisation, Secretary Maritime Affairs’ Secretary IT & Telecom and Special Secretary Cabinet may examine the working of e-Office and suggest ways to make it more user-friendly and efficient. The inter-divisional issue and receipt function may also be operationalised. The committee is to present its report in each meeting of the Secretaries’ Committee.

Copyright Business Recorder, 2024