The power of the cabinet

Sometimes the most significant cases receive very little commentary. That seems to be the fate of Mustafa Impex and Others v The Federation decided last month by the Supreme Court of Pakistan. Authored by Justice Saqib Nisar, the judgement has radically re-ordered the internal dynamics of the federal government and, by extension, of the provincial governments too.

It all began with a tax dispute. Back in 2013, during the caretaker government’s term, a notification was issued imposing sales tax on the import of certain goods. The importers whose business interests were adversely affected by his decision challenged it, latching on to a single little detail: although the notification purported to convey a decision of the “federal government”, it had been signed only by an additional secretary of finance.

During litigation, the secretary disclosed that approval had also been sought from the adviser to the prime minister. But the core question remained: can a secretary’s or even an adviser’s decision be considered a decision of the entire federal government? By the time the case reached the Supreme Court, it was 2016. The court’s answer is: No. Only the federal cabinet can claim to speak for the federal government; neither the prime minister, nor his advisers nor the secretaries can claim this authority.

Anyone with even a modest appreciation for constitutional law will readily realise how big this is. No longer is the prime minister the de jure repository of all executive power in the country, as was previously believed. Nor do the prime minister’s advisers or senior bureaucrats hold the legal powers they once held. Instead, the legal authority to make executive decisions regarding the fate of Pakistan now vests securely in the hands of the collegium known as the federal cabinet.

True, the prime minister can hire or fire federal ministers at will. But for as long as they stay in the cabinet, federal ministers must be consulted in every major decision and the consultation must be informed and meaningful; mere rubberstamping would not be acceptable.

The legal reasoning behind the court’s 80-page judgement is far too complex to be summarised in this brief space. Briefly put, the court has interpreted Articles 90 and 99 of the constitution which define the federal government as “consisting of the Prime Minister and the Federal Ministers”. The judgement also relies heavily upon certain amendments to these articles made by the framers of the 18th Amendment, perhaps inadvertently.

Ironically, heavy reliance has also been placed upon General Ziaul Haq’s 8th Amendment which strengthened the position of the cabinet vis-à-vis the prime minister, although the general aim was to weaken both and, instead, elevate the office of the president. The framers of the 18th Amendment reverted the president’s powers to the prime minister but didn’t touch the issue of cabinet powers. The result is a federal cabinet which is technically more empowered than either the president or the prime minister.

There are a five points about the judgement that are worth highlighting.

First, unlike many other court rulings, its effect in not going to be merely rhetorical. This judgement will be enforced because its enforcement does not have to rely upon either the generosity of the prime minister or the courage of ministers to wrest away their due share of power. Instead, the government high-ups would be forced to comply because if they don’t, citizens adversely affected by their decisions – of whom are always many – would be able to challenge the validity of decisions in courts.

Two, although the case arose out of a decision to the federal government, its ruling applies equally to the provincial governments because the constitutional provisions governing both have similar wording.

Three, the judgement suggests that, although this Supreme Court is wary of exercising suo motu powers, it is not as insular to our political context. The court’s judgement is clearly meant as a response to the singularly blatant disregard for the norms of cabinet government shown by the government of Prime Minister Nawaz Sharif in recent months.

Three, from a policy standpoint, the value of the judgement’s key proposal – the diffusion of executive power – is something on which reasonable people can differ. Parliamentary democracies like Britain have historically valued this idea. In the context of our society, where the tendency towards authoritarianism is particularly pronounced amongst powerful individuals, spreading power more widely amongst cabinet members offers hope for a more deliberative and inclusive decision-making culture. But in other contexts, eminently reasonable people have argued against it.

The authors of the Federalist Papers argue that, unlike the legislature and the judiciary, the functions of the executive branch are best left to one person. If every executive decision has to be run through a collegium, nothing will ever get done. That is why the framers of the constitution of the United States chose to deviate from the mode of cabinet government and concentrated all executive power in one person: the elected president. While the Supreme Court has settled the legal debate, a civilised policy debate can still be carried out in the halls of parliament.

Last but not the least, it should be appreciated that if the court had so wanted, it could have taken the path of least resistance and upheld the prime minister’s interpretation of the constitution. Two benches of the Islamabad High Court had done just that. The Supreme Court, however, deliberately chose to propound an interpretation of constitutional democracy which is “substantive” and not merely “procedural” and this, for me, is the most heartening aspect of the situation.

In a powerful passage, Justice Saqib Nisar says: “If we treat the office of the prime minister as being equivalent to that of the cabinet, it would follow that the prime minister, by himself, as a single individual, becomes the federal government. This is simply inconceivable. It is the antithesis of a constitutional democracy … It is most emphatically not the function of this court to surrender the hard won liberties of the people of Pakistan to such a fanciful interpretation of the constitution ...”

These remarks are strongly reminiscent of the creative, courageous, anti-establishment jurisprudential strain which, in the era of Chief Justice Chaudhry, brought the court so much popular acclaim.

Mustafa Impex v The Federation is particularly commendable when viewed in the context of what came before it: judgements baptizing the military trial of civilians, legalising the hunting of endangered birds, glossing over the ever-increasing trend of enforced disappearances, custodial torture and so on and so forth.

The judges have publically vowed never to “surrender the hard won liberties of the people of Pakistan”. It is now for the people to hold them to their promise. From a Supreme Court for whose restoration so many people of my generation fought pitched battles in the streets, nothing less is to be expected.

The writer is a partner at The Law and Policy Chambers.

Email: umer.gilani@gmail.com