A government is the most effective instrument contrived by the mankind to secure general welfare, blessings of liberties and happiness. To achieve all these ideals an efficient government needs to be installed as provided by the constitution and conventions designed in the light of habits and genius of the people. A constitution and a government formed under it require an allegiance of the people, which they unconsciously obey. This obedience to the constitution and the law brings in efficiency in their working.
The first constituent assembly adopted the parliamentary form of government through an interim Constitution, which despite many upheavals, worked till the first constitution of 1956. The 1956 Constitution provided for the parliamentary system of Government. This constitution was abrogated in 1958 by the martial law regime. All powers were concentrated in the Chief Martial Law Administrator (CMLA). When a new Constitution was given in 1962, it had the presidential system.
The present constitution of 1973 once again adopted the parliamentary form of government. A parliamentary form of government is the one wherein the executive power of the state is vested in a Cabinet, which can remain in power only if it enjoys the support of the legislature and in our case National Assembly. The cabinet is collectively responsible to Parliament for its functions. There is a constitutional requirement under Article 91 that the Prime Minister must be a member of the National Assembly, unlike India and the UK, where the Prime Minister can also be a member of the upper house, i.e., the House of Lords/House of the States. Other ministers of the cabinet have to be the members of the either house if they are to continue in their office beyond the period of 6 moths. The executive authority of the Federation is to be exercised by Federal Government comprising of the Prime Minster and federal ministers (the cabinet) who are to act through the Prime Minister.
In Pakistan, the executive power of the Federation is exercised in the name of the President (on the pattern of English monarch) but the President is to act on and in accordance with advice of the Cabinet or the Prime Minister (Article 48 (1). Our constitution envisages two situations. In the first situation, the Prime Minister, to the exclusion of his Cabinet, can advise the President in the performance of his functions (Article 48 (2)). In the other situation, there is a collective decision of the Cabinet on any matter but again the Cabinet has to act through the Prime Minister. No Minister can directly aid and advise the President for the simple reason that the Cabinet owes its existence to the Prime Minister. Federal Government means the Prime Minister who can hold more than one or all portfolios. Every Minister is appointed and removed by the President on the advice of the Prime Minister (Article 92). A minister is bound to resign if he disagrees with the Prime Minister. The Prime Minister can even advise the President to dissolve the National Assembly. In that event, the government also ends, for it needs to have the support of the National Assembly for its existence.
The system of government envisaged by our Constitution is based upon constitutional principles and practices evolved over several centuries in England. While interpreting the Constitution, in addition to the provisions of the Constitution, constitutional conventions and practices need to be looked at, with one caveat that the Constitution has not expressly excluded such a convention or practice. As there is no culture of deference to the practices of other branches of the Government in the application and construction of the Constitution, it results in mistrust amongst those branches.
With this background, let us come to the core issue. It has been noted with great concern over the past one decade and particularly during the present government that a number of constitutional provisions and conventions of the cabinet government are not being followed. The Constitution mandates that the discussions, decisions and advice to the President by the Cabinet remain confidential. The policies of the government should reflect those decisions. This government, after every Cabinet meeting, holds a press conference. It publicly disclosed what decisions were made or advice was given to the President. Even the internal discussions, deliberations and differences find their way to the public domain. Many notable journalists base their lead stories upon the unauthorized and confidential information. Spokes-persons make public statements about crucial state matters before the Government takes a formal decision. This is an absolutely unconstitutional practice. Certainly, democracy is all about openness but so is the case in other democracies where openness is subject to the Constitution and conventions. It is the policy and ultimate decision that needs to be open and not the internal discussions.
The second unconstitutional practice, which is of more serious nature, that needs to be immediately stopped. Every minister is free to criticise and disagree with any decision within the Cabinet. Once the Cabinet takes a decision on any issue then each member of the Cabinet is bound by it before Parliament and public. In case anyone disagrees with a decision, then he must resign. The constitutional principle of collective responsibility mentioned in Article 91 (6) means, what Lord Salisbury stated in (1887): "... for all that passes in Cabinet, Each member of who does not resign in absolutely, and irretrievably responsible, and has no right afterwards to say that the agreed in once case to a compromise and while in other he was persuaded by his colleagues..."
These provisions of the Constitution and conventions built around them and the practices followed espouse fundamental principles of the government. These principles are also interconnected. If one of them is violated, it will affect other provisions and ultimately the working of the Government. It therefore needs to be emphasized that the Prime Minister and his Cabinet are bound by their oath, which they take before entering upon their offices that clearly states "I will discharge my duties and perform my functions, honestly, to the best of my abilities, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan".
The third unconstitutional practice is of even much greater concern. Special Assistants to the Prime Minister are not members of the Cabinet under the Constitution. They are not part of the civil service. They are being permitted to sit in the Cabinet meetings. They have even the audacity to openly criticize and disagree with the decisions and policies of the Cabinet. This trend is poorly reflecting upon the working of Federal Government. It is high time that a code of conduct is prepared and implemented.
The fourth important principle of a responsible government is that Prime Minister is the leader of the House. His regular presence in Parliament is necessary for the functioning of the government. Late Z A Bhutto always used to be present in Parliament. Unfortunately, this practice has not been followed by his successors. Prime Minister is the Chief Executive and his real strength rests in Parliament. It is almost proverbial that he owes his office to Parliament. A representative government is so far the best form of government. There can be no better place than Parliament for a Prime Minister. It is a castle for him in politics.
Copyright Business Recorder, 2019
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