ISLAMABAD: The Islamabad High Court (IHC) has ruled that an adviser has no role either in policy matters of a Division or a Ministry nor its execution and running the business of the federal government in terms of the Rules of Business, 1973.
"Part-D of the Rules of 1973, read with Articles 90 (2) and 91, unambiguously shows that an Adviser is not part of the Federal Cabinet nor entitled to attend its meetings, except when the Prime Minister requires his/her attendance and, that too, by special invitation as has been provided in the proviso to rule 20 (1A) of Part-D of the Rules of 1973," said a single-judge verdict of IHC Chief Justice Athar Minallah.
The bench on Wednesday disposed of a petition challenging the appointment of Shahzad Akbar as Advisor to the Prime Minister on Accountability and Interior.
"No case is made out for issuance of a writ of quo warranto in relation to the appointment of respondent no.3 [Shehzad Akbar] as an Adviser because neither a relevant ground raised nor material placed on record for admitting the petition to regular hearing," said the judgment, which was reserved on Tuesday.
Syed Pervez Zahoor, through Amanullah Kanran had filed a petition against Shehzad Akbar as an adviser to PM on accountability, and cited prime minister, secretary Cabinet Division, Mirza Shahzad Akbar and the chairman National Accountability Bureau (NAB) as respondents.
The judgment said rule 5 of Part-A of the Rules of 1973 explicitly provides that important policy decisions cannot be taken except with the approval of the Prime Minister and that it is the duty of a Minister to assist the Prime Minister in the formulation of policy.
Sub rule (5) of Rule 5 provides that, subject to sub-rule (1), the Minister shall be responsible for policy concerning his/her Division.
"Rule 55(4) provides that only Ministers and Secretaries, and such officers as may be authorized, shall act as official spokespersons of the Government. As a corollary, the rule would be breached if an Adviser or an authority not specified therein is authorized to act as an official spokesperson."
The president is empowered under Article 93 of the Constitution 1973 to appoint, on the advice of the prime minister, not more than five advisers.
However, an adviser is not a member of the Federal Cabinet nor entitled to attend its meetings except when required to do so by the prime minister and, that too, pursuant to a special invitation.
An adviser can speak and attend the proceedings of the Majlis-e-Shoora (Parliament) but cannot vote.
"The business of the executive authority and the manner in which it is to be exercised is governed under the Rules of 1973, which does not contemplate the role of an Adviser."
"An Adviser cannot interfere or in any manner influence the executive authority, working or functioning of a Division/Ministry nor its policy matters."
The court said that the NAB had been established under the National Accountability Bureau Ordinance, 1999.
"An Adviser appointed under Article 93 of the Constitution does not have any power whatsoever to, directly or indirectly, instruct, dictate or in any other manner interfere with the powers conferred in the NAB under the Ordinance of 1999."
The judgment said, similarly, the Federal Investigation Agency (FIA) had been established under the Federal Investigation Agency Act 1974.
"The latter statute also does not empower an Adviser to interfere in the matters of the Agency, whether directly or indirectly."
"Any interference in breach of the Act of 1973 will definitely be void and an abuse of the Adviser's office."
The court noted that according to the Sindh High Court judgment Fareed Ahmed A Dayo vs Chief Minister Sindh (PLD 2017 Karachi 214, an adviser is a person who merely gives advice in a particular field.
An Adviser, therefore, cannot be given nor can the latter exercise powers or perform functions in derogation of the mandatory scheme of the Rules of 1973 read with the provisions of the Constitution.
The petitioner has not placed on record any material in order to ascertain whether, as an adviser, respondent no. 3 may have breached the provisions of the Constitution or the Rules of 1973.
The objection regarding respondent no.3's appointment as chairman of the Assets Recovery Unit cannot be considered because it had been raised before the august Supreme Court and the detailed judgment in the matter is awaited.
The IHC expected that respondent no.3 will advise the prime minister having regard to the status of an adviser envisaged under the Constitution, read with the scheme of governance prescribed under the Rules of 1973.
Copyright Business Recorder, 2020
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