- Can the PM appoint so many advisers or special assistants
The idea of a representative democracy, defined by Abraham Lincoln as “government of the people, by the people, for the people”, runs throughout the constitutional fabric of Pakistan. The writers of the Constitution lay down in its preamble: “The state shall exercise its powers and authority through the chosen representatives of the people.”
Much ink has been spilled by proponents and opponents of a presidential form of government. The debate over its merits and demerits is raging. As things stand, the president of Pakistan is a ceremonial head of state and representative of the unity of the republic, as per Article 41(1) of the Constitution. The prime minister is at the helm of affairs of the federal government. He exercises the executive authority in the name of the president. In theory, the president is the wellspring of power. Practically speaking, he is a symbolic figure and cannot act on his own.
To state the obvious, the Constitution is hybrid, drawing heavily both on the British parliamentary and the American presidential form of government.
The status, powers and rights of a federal minister or a minister of state cannot be conferred upon unelected advisers and special assistants to the prime minister, nor can they sit in or participate in cabinet meetings conducted by the prime minister
As soon as the PTI took the reins of government following the 2018 election, Imran Khan appointed special assistants and advisers. Curiously, they were accorded either the powers and status of a minister of state (junior minister) or a federal minister, giving rise to a key question whether we are hurtling towards a presidential form of government or not. As it is, there are five advisers with the powers and status of federal ministers according to the National Assembly website. As for the special assistants, there are 14 of them; four have been given the powers of ministers of state and one the status of a Federal Minister.
It goes without saying that the advisers and special assistants are neither members of parliament, nor are they part of the federal cabinet according to the current constitutional scheme. The question thus arises whether they can be accorded the status and powers of ministers or ministers of state under the Constitution. This requires an overview of the Constitution, the relevant Rules of Business, and the case law in this regard.
The federal cabinet consists of ministers with the prime minister at its head. That Articles 90 and 91 about thr federal government and cabinet do not include advisers and special assistants is of immense significance. Article 92 states categorically that federal ministers and ministers of state shall be appointed from amongst the members of parliament. However, with the incorporation of Clause 9 to Article 91 and insertion of specific words ‘subject to Clauses 9 and 10 of Article 91’ in Article 92 by way of the 18th Amendment (2010), its stringent consequences have been effectively blunted and watered down.
Before the amendment, a prime minister could not accommodate ‘outsiders’. However, after, he is vested with ample power to appoint any person as a minister for six months regardless of whether the person is a member of Parliament or not. Differently put, the prime minister can fill in a particular ministry with a number of different people after the expiry of every six months if he likes. If that minister does not become a member of either House for six months, he would automatically cease to hold the office and shall not be appointed as a minister again before the dissolution of the National Assembly unless he is elected a member, Article 91(9) states. The proviso carves out an exception, excluding a Senator from its four corners.
Before entering upon office, a federal minister must take the oath provided in the third Schedule to the Constitution.
Article 93 deals with the appointment of advisers to the prime minister. The original constitution did not contemplate these appointments. The Sindh High Court, Mr Justice SA Rabbani, traces the origin of adviser(s) to the prime minister and chief minister in a seminal, landmark case reported as Ahmad Yousaf Ali Rizvi and others vs Munawar Ali Butt and others (PLD 2000 Karachi 333).
Article 93(1) speaks of two things in relation to the appointment of advisers: firstly, empowering the prime minister to appoint adviser(s) and secondly, ppreventing him from appointing more than a certain number. When it comes to the appointment of advisers, on the face of it, the president enjoys absolute and unfettered power; he can appoint any person, irrespective of whether he is a member of parliament or not. However, this power is to be exercised according to the constitutional scheme, not brazenly and arbitrarily. Seemingly, the underlying intention of this provision is to accommodate highly educated and qualified people working in various walks of life who could not be elected to parliament or do not want to indulge in electoral politics. However, party loyalists are now joining the government under this provision, thereby defeating its real purpose. As for the restriction envisaged by the constitutional provision, it limits the PM’s power to appoint advisers in respect of numbers. In other words, the maximum number of advisers a PM may appoint at a time is five. Any appointment beyond that limit would be unconstitutional.
Article 93 confers the same right upon advisers as envisaged by Article 57; they enjoy the right to speak and participate in the proceedings of either House, or a joint committee or any committee thereof as a member.
Let us now discuss the special assistants to the prime minister. Although the Constitution in its interpretation clause, Article 260, does make an oblique reference to P<’s special assistants, it is silent on their appointment. To supply this omission, Rule 4(6) of the Rules of Business, 1973 comes in aid of the prime minister.
Having discussed ministers, advisers and special assistants, advisers and special assistants may be contrasted with ministers. The first line of demarcation is that unlike ministers, advisers and special assistants are not part of the federal government. This being the case, they cannot be vested with any ‘executive authority’: a delegate cannot further delegate. The second big difference is that they don’t take the constitutional oath. Thirdly, they are not collectively responsible to Parliament in terms of Article 91(6).
These stark differences have been thrown into bold relief in a recent judgment of the Sindh High Court reported as Fareed Ahmad A Dayo vs Chief Minister Sindh through Principal Secretary and five others (PLD 2017 Sindh 214) (DB).
In a nutshell, the status, powers and rights of a federal minister or a minister of state cannot be conferred upon unelected advisers and special assistants to the prime minister, nor can they sit in or participate in cabinet meetings conducted by the prime minister. One wonders if Prime Minister Imran Khan is honouring the Constitution more in the breach than in the observance by granting the status of federal ministers to his advisers and that of ministers of state to his special assistants. During his election campaign, he used to promise to hold aloft the banner of the rule of law when he would come into the power. Lamentable as it is, post-election, he is falling foul of the law of the land.
