Deep implications of IHC order

ISLAMABAD: The Islamabad High Court (IHC), profusely quoting the Rules of Business, 1973 and the Constitution, has practically ended the role of the advisers and special assistants to the prime minister in the government as they have been prohibited from doing policy making, taking decisions, exercising executive authority and acting as official spokesmen at any forum.

Top constitutional experts The News spoke to were unanimous in their opinion that Wednesday’s IHC order, authored by Chief Justice Athar Minallah, has, for all practical purposes, barred the advisers and special assistants from heading key cabinet committees, holding pressers, representing the government in TV talks shows, and taking and announcing policy decisions.

These experts said that the IHC judgment was absolutely dismissive of the special assistants while it confined the role of advisers to only attending and speaking in Parliament’s sessions.

They all agreed that the verdict has extremely deep implications for the government as far as the advisers and special assistants are concerned. If the judgment remains in the field, these prime ministerial aides have been left with a little or no role to play as against what they have been doing, they said. “I’m sure the government will challenge it in the Supreme Court.”

When contacted, former president of the Supreme Court Bar Association (SCBA) Ali Zafar Shah told The News that the advisers and special assistants can’t practically do anything in the government while holding the status of ministers or ministers of state.

He said these aides can’t take any decision, can’t do any policy making and can’t issue directions. He said that their role has become just advisory and they can make recommendations only. But when their implementation will come, they can’t do anything, he said. “Even I can give proposals to the government on any subject on a voluntary basis, but that doesn’t mean I can be the decision maker under the Rules and Constitution.”

The expert said that in the light of the IHC order, no adviser can head the cabinet bodies like the economic committee, privatisation committee, energy committee, Board of Investment etc.

He said that the judgment has absolutely excluded any role whatsoever of the special assistants but has limited the function of the advisers to speaking and participation in the parliamentary proceedings.

Another former SCBA president Kamran Murtaza explained to this correspondent that the elected government, as the IHC verdict rightly pointed out, was to be run by the chosen representatives under the Constitution. He said the order has serious ramifications for the government, which has five advisers and 14 special assistants, running premier ministries as if they are full-fledged cabinet ministers, which are not.

He referred to the constitutional scheme and said that such prime ministerial aides have no role to play and can’t head any government committee or organisation. “The IHC decision has seriously dented the relevance of advisers and special assistants and restricted them to what the Constitution and the Rules of Business actually prescribe.”

Prominent lawyer Kashid Malik told The News that he agreed with the IHC judgment because the government, as ordained by the Constitution, is to be run by the elected representatives, which was the bottomline of the verdict. Elaborating, he said the advisers and special assistants did not figure in the definition of the federal cabinet as done in Article 91.

The special assistants don’t find any mention in the Constitution, which refers to advisers only once when Article 93 says that the President may, on the advice of the Prime Minister, appoint not more than five advisers, on such terms and conditions as he may determine, Kashif Malik said.

He said neither the advisers nor the special assistants can speak on behalf of any ministry or division they are attached with as per the IHC verdict. The judgment said Rule 55(4) of the Rules of Business provides that only ministers and secretaries, and such officers as may be authorised, shall act as official spokespersons of the government, and held that as a corollary, this rule would be breached if an adviser or an authority not specified in it is authorised to act as government spokesperson. The IHC order, disposing of the challenge to the selection of Shahzad Akbar as Adviser on Accountability and Interior, confined itself to the issue of his appointment and conduct as adviser and did not touch his role as the Chairman of the Assets Recovery Unit because the Supreme Court judgment on it is awaited.

The verdict, referring to the Rules of Business and the Constitution, explained what an adviser can do and what he can’t, and said minister defined in clause (xiii) of Rule 2 neither includes an Adviser nor a Special Assistant.

The IHC said that these rules are binding and anything done in violation of them is void and ultra vires as has also been held by the Supreme Court. It pointed out that the apex court has also ruled that since the authority of the Rules flows from the Constitution, following the scheme prescribed in them is mandatory and binding and failure would lead to an order or action lacking any legal validity. Rule 4 of Part-A provides that each division or ministry shall consist of a secretary to government and of such other officials subordinate to him as the government may determine.

The order said that appointing an adviser with the status of a minister does not empower him/her to act or function as a minister or to perform functions under the Rules, which explicitly declare the secretary to be the official head of the division/ministry and responsible for its efficient administration, discipline and proper conduct of business.

The advisers or special assistants in a division or ministry are not one of its officials. For the purposes of the executive business, the secretary and officials subordinate to the latter have a pivotal and exclusive role.

The verdict said an adviser has no role either in policy matters of a division or ministry nor its execution and running the business of the federal government in terms of the Rules. Rules unambiguously show that an adviser is not a member or 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 rules. The order said that the relevant constitutional provisions and the Rules are unambiguous regarding the status and role of an adviser in the context of the business of the executive organ of the state.

The business of the executive authority and the manner in which it is to be exercised is governed under the Rules, which does not contemplate the role of an Adviser. The IHC judgment said an adviser cannot interfere or in any manner influence the executive authority, working or functioning of a division/ministry nor its policy matters.

This scheme is obviously based on the foundational principle of the Constitution that the 'state shall exercise its powers and authority through the chosen representatives of the people'. The order said that as head of a division/ministry, it is the duty of every secretary to ensure that business is conducted and functions performed strictly in accordance with the scheme of the Rules and that no one is allowed to interfere in breach of them.

An adviser, the IHC ruled, does not have any power whatsoever to, directly or indirectly, instruct, dictate or in any other manner interfere with the powers conferred in the National Accountability Bureau (NAB) or the Federal Investigation Agency (FIA). Any interference will definitely be void and an abuse of the adviser’s office.