ISLAMABAD: Deploring that the prime minister bypassed his cabinet while deciding to send a reference against Justice Qazi Faez Isa to the Supreme Judicial Council (SJC), Justice Maqbool Baqar has observed that the cabinet, being the supreme body of the executive and with a high constitutional status, cannot be treated as a mere rubber stamp for decision-making by the prime minister.

In his 68-page dissenting note in the judgement on Justice Isa presidential reference, which was released on Nov 4, Justice Baqar observes that turning the cabinet into a rubber stamp in pursuit of decision-making by the prime minister to the exclusion of his cabinet would violate the letter and spirit of the constitution. That would be to reduce a cabinet form of government into a prime ministerial one, which is a concept alien to the constitution.

“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,” Justice Baqar explains, adding that this is simply inconceivable.

It is the antithesis of constitutional democracy and would amount to a reversion to a monarchical form of government reminiscent of King Louis XIV’s famous claim that “I am the State” (L’etat, c’est moi), Justice Baqar warns.

President’s conduct lacked conformity with constitutional requirements, Justice Baqar writes in dissenting note

Thus any decisions taken by the prime minister on his own initiative lack the authority of the law or the constitution, the SC judge rules.

On June 19, the Supreme Court through a short order had quashed the presidential reference to wash away the stigma of misconduct on Justice Isa over non-declaration of three offshore properties in the name of his wife and children. On Oct 23, majority detailed reasons were issued along with the dissenting note of Justice Yayha Afridi.

While citing 2016 Mustafa Impex case, Justice Baqar observes that according to this judgement and as prescribed by Rule 20 of the Rules of Business 1973, it is not just the approval of the cabinet that is required before taking a decision but such approval has to be made after due deliberation with full awareness of the issue.

According to the SC judge, the effective participation and contribution of the cabinet in decision making becomes necessary also in view of the fact that in terms of Article 91(6) of the Constitution, the cabinet has been made collectively responsible/liable for the decision made, and the policies formulated, by the executive.

Article 90 says that the executive authority of the federation will be exercised in the name of the president by the federal government, consisting of the prime minister and the federal ministers, which shall act through the prime minister, who shall be the chief executive of the federation.

But while deciding to send the reference to the SJC under Article 209 of the Constitution, the prime minister bypassed the cabinet altogether and sent his purported advice to President Arif Alvi for forwarding the reference to the SJC, without the sanction of the cabinet, Justice Baqar regretted.

The central role (in decision making) is played by the cabinet which is, in fact, a re-description of the federal government, Justice Baqar observes. The prime minister is the head of the cabinet but he can neither supplant it nor replace it. He cannot exercise its powers by himself.

Justice Baqar explains that Pakistan is a federal republic and its governance structure is based on provincial autonomy and trichotomy of power.

“Our constitutional scheme secures and guarantees independence of judiciary in a meticulous, effective and robust manner and amongst the main objectives espoused through the preamble to the constitution, professes independence of judiciary, as one of the prime objectives, and thus states … the independence of judiciary shall be fully secured.

“Such has also been our resolve, expressed through the objective resolution, which by virtue of Article 2A forms substantive part of the constitution.”

One of the most significant safeguards ensuring the professed and committed independence of judiciary has been provided by way of protecting the tenure of office of the judges of the Supreme Court and the high courts, through articles 179 and 195 of the Constitution, respectively, Justice Baqar points out.

Article 179 reads: “A Judge of the Supreme Court shall hold office until he attains the age of sixty five years, unless he sooner resigns or is removed from office in accordance with the Constitution.”

Article 195 secures the tenure of a high court Judge in similar terms, whereas Article 209(7) provides that the superior court judges will not be removed from office except as provided by this provision.

The possibility of removal of these judges is envisaged by Article 209(6) in two successive eventualities: (a) After an inquiry the SJC finds a judge incapable of performing duties of his office, or to be guilty of misconduct, and (b) in view of such incapability or misconduct, the SJC forms an opinion that the judge be removed from office and it is only then that the president may remove him from office, Justice Baqar notes.

However, in the present case, the conduct of the president was neither in consonance with the provisions of Article 209 nor was it in conformity with the requirements of Article 90 and 91 of the Constitution, the judge deplores.

Published in Dawn, November 8th, 2020