Public offices and partymen

A constitutional government on a liberal tradition is established where political power is exercised subject to limitations provided in a written constitution. Political parties are the life-line of liberal democracy which help form and articulate public opinion as a check on a variety of domestic and national decisions and policies of a sitting Government. The foundational purpose of forming and/or joining a political party is to gain political power through legitimate means provided in the national constitutions, of which elections are the most accepted norm and form. When a party comes to power, its representatives are entrusted with executive power of a state. In a presidential system there is a fixed term ranging from four years to six years. In a parliamentary form of government, the prime minister/chief executive holds office until he/she enjoys support of the majority of members of the elected house. These members are elected for a fixed term - usually five years of the assembly unless dissolved earlier. Having been elected directly president/chancellor or a prime minister after obtaining support of the majority, form/select a team to run the government (executive branch), which has a number of departments, depending upon the system - federal or unitary. In the former case, a division of subjects is made between two Governments again depending upon the nature of federations that range from the one almost bordering a unitary system like India or a federation at the fringes of a confederation-leaving only few subjects with the central/federal government while in a unitary system there is a single national government. It is an age of cooperative federalism. Again, in a parliamentary form of the government, members of the Cabinet have also to be the members of legislature(s). Legislatures can either be unicameral (one house-like New Zealand) or bi-cameral, like Australia, the UK, India and Pakistan. The lower chamber/house is normally an elected one comprising members elected on the basis of universal suffrage and division of seats amongst the states/provinces is based on territorial constituencies having a minimum number of voters/constituents. The upper/other house normally represents states/provinces on equal basis. Special territories (capital territory and special areas) and under-represented groups like women, minorities (religious-ethnic) are given reserved seats, either within the allocated seats or in addition to the general seats, in both houses. This is a summary of the organisation of a civil government.

In addition to these foundational rules set out in the constitutions there are some other rules called constitutional conventions developed as a result of long practice which are supplementary. These fundamental rules of the government are devised to create checks on power by contrivance, guided by wisdom, experience and compromises of the founding generation (of leaders) represented in the constituent conventions/ assemblies which are improved through an evolutionary process, usually by trials and errors, and added by the constitutional amendments which require special majorities. America's founding fathers chose a presidential form and a bicameral legislature some two hundred years ago. It has successfully worked. This system was devised in the light of a colonial past, history of political institutions, bad experience of the confederation. The case of the United Kingdom is unique and different due to its constitutional and legal history. Other countries in Europe have been making experiments. Many of them have hybrid systems.

Three foundational principles can be derived from the American and European experience. Power is seldom used for personal gains as there is a ruthless accountability through varying means - conscientiousness and honesty of political leadership where truth and integrity are virtues most counted. Secondly, a strong public opinion, informed by a free and independent press that keeps a check on abuse of power-called fourth pillar. Thirdly, an independent accountability by different institutions over-seen by an independent judiciary, usually a constitutional court.

A state has a large number of public offices. Generally, law and the Constitution provide qualifications for those public offices but matters are left within the power of the heads of government. Under the constitution, governors of the provinces, advisors to the Prime Minister, special assistants to the Prime Minister, chiefs of three armed forces are only few of these offices within the power of the Prime Minister. There are similar powers vested in the chief ministers. There are also several offices/posts in in regulatory bodies created by law, universities, ambassadorships, heads of many institutions, law officers, lower posts in police, excise and revenue departments which are filled/appointed by the federal/provincial governments. Appointments to all these offices fall within the power of the Prime Minister/Chief Ministers or the Federal/Provincial Governments which essentially means the Prime Minister (Chief Minister mutatis mutandis) because the Cabinet comprising of Federal Ministers/Minsters of State (Articles 91 (1 & 92 (1) is appointed by the President upon the advice of the Prime Minister. The Cabinet stands dismissed/dissolved in case the Prime Minister loses support of the lower house or resigns from office. The Mustafa Impex Judgement (PLD 2016 SC 816) was seemingly given to bridle powers of the Prime Minister but experience has shown that the Prime Minister has his way over the heads of the Cabinet and none has the guts and courage to question his decisions. Most importantly, he has the control over the purse.

The underlying issue is: are there any constitutional and legal limits upon the powers of the Prime Minister (and other constitutional functionaries) for making appointments against public offices/posts under the Constitution and law? The head of a government swears an oath before entering upon his office as provided in the Constitution. It is not a mere ceremonial relic. The oath of an office is a great constitutional check upon the power that is guaranteed through this solemn oath. The language of oaths given in the Third Schedule to the Constitution is generally common for (Prime) ministers, judges, members of legislature and members of armed forces and other constitutional functionaries. Those who believe in rule of law and the Constitution, understand that whenever this oath is violated, in any form, it has consequences for the state, they are entrusted to represent through their offices and also before Allah Almighty, as mentioned in the preamble to the Constitution and in the Objectives Resolution (Article 2 A and Annexure) whose words are worth repeating. It states that authority is a trust delegated to the chosen representatives. Oaths of all heads of the constitutional institutions under the Constitution have common language swearing to "discharge my duties, perform my functions, honestly, to the best of my abilities, faithfully, in accordance with the Constitution" and "will not allow my personal interest to influence my official conduct and official decisions and "that "I will preserve, protect, and defend Constitution". A person who does not honour this solemn commitment cannot be trusted with power.

In addition to the above, the Constitution contains several checks on power. Fundamental rights that guarantee rights to life, dignity of man (beyond color, creed and faith), equality before law (opportunities for all under the law) and safeguards against discrimination in access to public services is a check on that power. Principles of policy (Articles 29-39) are equally a part of the Constitution the Prime Minister and other constitutional functionaries take oath to protect. There are also moral and social obligations upon the high office holders while making appointments to public offices (or distributing tickets for Senate and reserved seats) for elected offices. They must rise above the party lines and promote merit and not those who get access to them through glib and magical tongues. In Pakistan, political leaders and other constitution office holders are demi gods who are unwilling to mend their ways and souls. They are averse to checks upon their powers. The Constitution, law, oath, free press, public opinions and lately the judiciary through judicial review, of appointments, all have failed to bridle blatant abuse of power. Now this re-employment of retired officials in violation of merit, policy, law and the Constitution and decisions of the Supreme Court is on the rise. This meritless distribution of public offices to party men and others will only weaken the state institutions and lead to social disparities. State offices are not meant for personal friends or for retired officials who have served their terms and attained superannuation but find a way to come back and cling on to power for privileges and perks- in addition to hefty pensions, in the name of experience, expediency and indispensability.

Copyright Business Recorder, 2021