ISLAMABAD: The Islamabad High Court (IHC) has declared that unelected advisers and special assistants to the prime minister cannot exercise executive or administrative powers in the functioning of the government and only elected representatives chosen by people have the privilege to run the affairs of ministries.

IHC Chief Justice Athar Minallah, however, disposed of the petition challenging the appointment of Mirza Shahzad Akbar as PM’s adviser on accountability and interior, observing that it was the PM’s exclusive prerogative to choose a person for rendering him advice and tendering advice to the president for his appointment as an adviser.

Having said that the court also ruled that any executive function performed by any unelected member of the prime minister’s team would deem to have been taken illegally, without any lawful authority and hence void. “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 of Business 1973,” declared the court in its verdict issued here on Wednesday.

CJ observes it’s prime minister’s prerogative to choose a person for giving him advice

While disposing of the petition, the chief justice declared the adviser’s executive acts as void and held that the PM’s advisers had no role in policy matters of a ministry and their execution or running the business of the federal government. “Suffice it to mention, any act of Respondent No.3 [Akbar] in breach of the constitutional provisions and the Rules of 1973 will be void, without lawful authority and jurisdiction,” the court ruled.

As per the court decision, advisers and special assistants to the prime minister are not even authorised to speak on government’s behalf.

“Only ministers and secretaries, and such officers as may be authorised, shall act as official spokespersons of the government. As a corollary, the aforementioned rule will be breached if an adviser or an authority not specified therein is authorised to act as an official spokesperson,” the court order said.

The IHC declared that the advisers and special assistants could not exercise the executive authority. “For the purposes of the executive business, the secretary and officials subordinate to the latter have a pivotal and exclusive role,” it noted.

The manner in which the business of a division or a ministry is required to be transacted has been described in Rule 5 of Part-A of the Rules of 1973. It explicitly provides that important policy decisions cannot be taken except with the approval of the Prime Minister and that it is the duty of a Minister to assist the Prime Minister in the formulation of policy.

Sub-rule (5) of Rule 5 provides that, subject to sub-rule (1), the Minister shall be responsible for policy concerning his/her division. Sub-rule (6) provides in unambiguous language that no officer other than a secretary, additional secretary or joint secretary shall take the initiative in approaching a minister in connection with the official business.

It said: “An Adviser appointed under Article 93 of the Constitution 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 under the Ordinance of 1999. Likewise, the Federal Investigation Agency (FIA) has been established under the Federal Investigation Agency Act 1974. The latter statute also does not empower an Adviser to interfere in the matters of the Agency, whether directly or indirectly. Any interference in breach of the Act of 1973 will definitely be void and an abuse of the Adviser’s office.”

“The relevant provisions of the Constitution and the Rules of 1973 are unambiguous regarding the status and role of an Adviser in the context of the business of the executive organ of the State. An Adviser is not a member of the Federal Cabinet nor entitled to attend its meetings except when required to do so by the Prime Minister and, that too, pursuant to a special invitation.

An Adviser can speak and attend the proceedings of the Parliament but cannot vote. The business of the executive authority and the manner in which it is to be exercised is governed under the Rules of 1973, which does not contemplate the role of an Adviser,” it added.

According to the petitioner, the appointment of Akbar as chairman of the ARU was illegal, void, without lawful authority and jurisdiction. The counsel for the petitioner, Amanullah Kanrani, stressed that Mr Akbar was not competent to attend meetings of the federal cabinet nor the proceedings of the parliament.

However, Justice Minallah observed: “Nonetheless, it is an admitted position that the appointment and conduct of respondent no.3 [Akbar] as Chairman of the Assets Recovery Unit was challenged before the august Supreme Court in a matter [of Justice Qazi Faez Isa’s petition] and the detailed judgment is awaited. It is, therefore, obvious that propriety requires this court to exercise restraint to the extent of the aforementioned appointment.”

As per the court’s order the President is empowered under Article 93 of the Constitution of the Islamic Republic of Pakistan, 1973 to appoint, on the advice of the Prime Minister, not more than five advisers.

The exercise of the executive authority of the Federation and its modalities are regulated under the Rules of Business, 1973 which have been made pursuant to powers conferred under Articles 90 and 99 of the Constitution.

Justice Minallah also noted that the petitioner did not place on record any material in order to ascertain whether Mr Akbar, as an adviser, may have breached the provisions of the Constitution or the Rules of 1973.

It is the exclusive prerogative of the Prime Minister to choose the person for rendering him advice and thus tendering advice to the president regarding appointing the latter as an adviser.

A court cannot substitute its own opinion with that of the PM and the matter thus falls outside the ambit of justifiability. An adviser, therefore, cannot be given nor can the latter exercise powers or perform functions in derogation of the mandatory scheme of the Rules of 1973 read with the provisions of the Constitution, the court ruled.

The court disposed of the petition with the expectation that Mr Akbar would confine himself within the “scheme of governance prescribed under the Rules of 1973”.

Published in Dawn, August 27th, 2020