Can Advisors and Special Assistants be Accorded the Status of Ministers?

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Can Advisors and Special Assistants be Accorded the Status of Ministers?

By way of introduction, parliamentary democracy, federalism and provincial autonomy are concepts that are deeply embedded within the constitutional fabric of Pakistan. The framers of the 1973 Constitution laid down in the Preamble a declaratory provision that said,

“The state shall exercise its powers and authority through the chosen representatives of the people” and “...shall form a federation wherein the units will be autonomous…”

It is needless to emphasize that with the incorporation of Article 2-A in the wake of the Eighth Amendment made in the year 1985, the Preamble/Objectives Resolution is to be read as an integral and substantive part of the Constitution. To clinch the idea of parliamentary democracy and federalism, the framers of the Constitution introduced a bicameral Parliament, comprising the President, National Assembly (lower house) and Senate (upper house), as per Article 90 of the Constitution of Pakistan 1973.

Ministers

The President is the ceremonial head of state and representative of the unity of the republic, while the Prime Minister is at the helm of affairs of the federal government – along with federal ministers – who exercises executive authority in the name of the President and is the Chief Executive of the federation.

With a view to achieving the purpose of provincial autonomy, the Governor is appointed by the President to ceremonially head the province. What is true of the President is also true of the Governor – both represent the federation.

The Chief Minister holds the reins of the provincial government, along with provincial ministers, as is evident from a perusal of Article 129(1). He or she exercises the “executive authority of the province” in the name of the Governor.

Although the word “federal” has not been used in the relevant constitutional provisions, it is worth mentioning that the federal cabinet consists of ministers and the Prime Minister. On the other hand, the provincial cabinet comprises the ministers and the Chief Minister.

Article 92 states in categorical and emphatic terms that the appointments of federal minister(s) and minister(s) of state shall be made from amongst the members of the Parliament. However, with the insertion of the words “subject to clauses 9 and 10 of Article 91” in Article 92 by way of the Eighteenth Amendment (2010), the proverbial sting has been taken out of the original provision. In other words, its stringent consequences have been effectively watered down. Before the Amendment, the Prime Minister could not accommodate “outsiders”.

However, post-Amendment, the Prime Minister is vested with ample power to appoint any person as a ‘minister’ for a period of 6 months regardless of him or her not being a member of the National Assembly. Differently put, the PM can fill in a particular ministry with a number of different people after the expiry of every 6 months, if he or she wants to. If that minister does not become a Member of National Assembly for a consecutive period of 6 months, he or she would automatically cease to hold office and shall not be appointed again as a minister before the dissolution of the Assembly, unless he or she is elected as a member of that Assembly (Article 91(9)).

The corresponding provision regarding provincial ministers in this respect is Article 132 read with Article 130(9) and (10). This provision, as it stands, defangs the original provision.

Before entering into office, a minister, federal or provincial, takes the constitutional oath provided under the Third Schedule pursuant to Article 92(2) or Article 132(2). Of immense significance is the fact that neither do Articles 90 and 91 vis à vis the federal government and cabinet, nor do corresponding Articles 129 and 130 in respect of the provincial government and cabinet embody “advisors to the Prime Minister or Chief Minister” and “special assistants to the Prime Minister or Chief Minister” in their purview.

This brings us to discuss the appointments of Advisors and Special Assistants to the Prime Minister and Chief Ministers of provinces.

Advisor to PM

Articles 93 and 130(11) deal with the appointment of advisors to the Prime Minister and Chief Minister(s), respectively. Needless to say, the original Constitution did not envisage these appointments. A former judge of the Sindh High Court, SA Rabbani has traced the origin of Advisor(s) to the Prime Minister and Chief Minister in a leading case reported as PLD 2000 Karachi 333:

“The original Constitution passed in 1973, did not recognize an Adviser, both at Federal as well as Provincial level.


10. The concept was introduced only through the Constitution (Sixth Amendment) Act, 1976, whereby “Adviser to the Prime Minister’ and Adviser to a Chief Minister’ were inserted in Article 260 in the definition of service of Pakistan”. Yet nothing was provided in the Constitution to authorise appointment of such an Adviser.


11. In 1985, through the Revival of the Constitution of 1973 Order (P.O. 14 of 1985) extensive amendments and substitutions were made in the Constitution. The Article relating to the Federal Government and the Provincial Governments were substituted and that introduced present Article 93 providing for the appointment of five Advisers at the Federal level.”

Article 93(1) clearly states that the President may, on the advice of the Prime Minister, appoint not more than five advisors, on such terms and conditions as he or she may determine.

As is evident from a bare perusal of this article, two things are mentioned in relation to the appointment of advisors:

  1. firstly, empowering the Prime Minister to appoint advisor(s); and
  2. secondly, placing a limit on the Prime Minister’s power to not appoint them beyond a certain number.

When it comes to the appointment of advisors, on the face of it the Prime Minister enjoys absolute and unfettered power; he or she can appoint any persons, regardless of them being members of Parliament, while it is entirely up to the will of the President to determine the terms of an advisor. However, the power vested in the President is to be exercised according to the constitutional scheme and not arbitrarily. Seemingly, the underlying intention of this provision of the Constitution is to accommodate the loyalist(s), who could not be elected as members of Parliament for any reason. As for the restriction envisaged by the constitutional provision, it limits the PM’s power to appoint advisors in respect of numbers. In other words, the maximum number of advisors a PM may appoint at a time is five. Any appointment beyond the limit set up by the Constitution would be unconstitutional. Article 93 goes on to confer the same right upon the advisors to the Prime Minister as envisaged by Article 57 - they enjoy the right to speak and participate in the proceedings of either House of Parliament, or a joint committee or any committee thereof, just like Members.

Advisor to CM

After highlighting Article 93 in terms of federal advisors, we now move on to dilate upon a corresponding provision of the Constitution for provincial advisors. Article 130(11) lays down that the Chief Minister shall not appoint more than five advisors.

Clause 11 to Article 130 was incorporated into the Constitution through the Eighteenth Amendment in the year 2010. By contrast, it is couched in fewer words as it omits the words “on such terms and conditions as he may determine” occuring in Article 93. However, to fill up this particular gap, Rule 7 of the Punjab Rules of Business 2011 stipulates the following:

“There shall be Advisors and Special Assistants to the Chief Minister to be appointed by him, for the performance of such duties and functions as may be specified from time to time.”

As is clear from the language used in Article 93, it is the President who may appoint federal advisors on the advice of the Prime Minister to advance the idea of federalism. On the other hand, no words such as the Governor appointing provincial ministers on the advice of chief ministers, have been used in Article 130(11). This omission has been made deliberately by the lawmakers, the reason for which is obvious: to avoid possible friction, disagreement and ultimately a full blown crisis between the Governor and the Chief Minister in case they come from two different political parties. In addition to this omission, Article 130(11) does not vest in the advisors of chief ministers the power to address and take part in Provincial Assembly proceedings in contrast to Article 91(2). As for numerical order, article 130(11) follows article 91(1).

Special Assistant to the PM and CM

Although the Constitution in its interpretational clause Article 260 does recognize special assistants to the PM and CM, it is completely silent regarding their appointments. Rule 4(6) of the Rules of Business 1973 gives full discretionary power or carte blanche to the Prime Minister in appointing a special assistant.

An Advisor is not the same as a Special Assistant, though the underlying purpose of their appointment may be same. An Advisor, by definition, is one who advises. On the contrary, a Special Assistant means one who assists for a particular purpose. Advice may be made by word of mouth or through writing. Contrarily, assistance requires one to help someone do something by either participating in a discussion or by offering advice.

The question is, when the Constitution itself recognises “Special Assistants”, could the PM or CM transgress the limitation imposed by Articles 93 and 130(11) by touting the Advisors as Special Assistants? The answer is a resounding no. The Special Assistant by no stretch of imagination can take on the role of an Advisor, otherwise it would defy and bypass the limit imposed by the Constitution. In other words, the two positions are not interchangeable.

Advisors and Special Assistants as Ministers?

Having discussed ministers, advisors and special assistants at length, it would be proper to contrast advisors and special assistants with ministers.

  • The first line of demarcation between them is that unlike ministers, advisors and special assistants are not the part of either the federal government or provincial government, as highlighted above.
  • The second big difference is that they don’t take the constitutional oath.
  • Thirdly, what makes them poles apart is the fact that unlike ministers, they are not collectively responsible to Parliament in terms of Articles 91(6) and 129(6).

These stark differences have also been highlighted in a recent judgment of the Sindh High Court reported as PLD 2017 Sindh 214 (DB). While interpreting Article 130(11), the court held authoritatively that an Advisor to the Chief Minister could not be accorded the status of a Minister and cited the case reported as PLD 2000 Karachi 333 (DB) with approval. The relevant portion from the latter case has been reproduced below:

“They are not included in the Federal Government as it was defined by the Constitution Committee to be consisting of the Prime Minister and the Federal Ministers. Moreover, to give powers of Ministers to unelected Adviser, would be against the concept of elected Government envisaged by the Constitution.


 

…. even if an adviser to chief minister is appointed in exercise of powers conferred by an enactment, he cannot be given powers and functions of a minister as he is not a member of the Cabinet and it will be contrary to the scheme of the Constitution.”

Conclusion

The inevitable conclusion that follows is that the status, powers and rights of a federal Minister or a provincial Minister cannot be conferred upon Advisors and Special Assistants to the Prime Minister and Chief Minsters and it would be against the spirit of the Constitution to do so. A writ of quo warranto can be filed under Article 199 before the High Court or under 184(3) before the Supreme Court to challenge such appointments.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.



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