A controversy is raging in the country as to whether the Special Assistants to the Prime Minister can be appointed under the Constitution, 1973 and if not, under what other law their appointments can be justified.
At the very outset, it can be stated without a fear of contradiction that the Constitution is completely silent on the appointment of Special Assistants. No Act of Parliament has been made to date to recognise this category as a legal entity. Even a novice in law knows full well that what is not expressly provided for in the Constitution is not to be read into it. The concept of casus omissus is well known to the legal circles. Simply stated, it means that if there is an omission in law, it cannot be supplied by the Courts. In other words, what is not explicitly stated shall be deemed to have been excluded. The aforesaid principle of law for the construction of statutes is equally applicable to the construction and interpretation of the Constitution.
Needless to add, if a law is found in conflict with a provision of the Constitution, it is struck down by the Superior Courts as they exercise their power of judicial review.
It seems that some guru or a legal genius found a way around the provisions of the Constitution, he certainly hit upon a novel idea. He dug a tunnel under the Constitution by introducing and inducting Special Assistants via the Rules of Business, 1973, intended for running the federal government. Before touching upon the relevant rule that has caused so much confusion, it is worth emphasizing that under Article 92 of the Constitution, ministers are appointed by the President, albeit on the advice of the Prime Minister. If this is the scheme envisaged by the Constitution, how can it be short-circuited and circumvented by giving a free hand to the Prime Minister to appoint directly anybody a personal assistant to himself. After all, this is not a kingdom to view Special Assistants as "khadmeen" to the Prime Minister.
The argument put forward by the proponents of the Special Assistants is premised on Rule 4(6) of the Rules of Business, 1973. This rule reads as under:
“There may be a Special Assistant or Special Assistants to the Prime Minister with such status and functions as may be determined by the Prime Minister”.
Going by this rule, the Prime Minister is the end-all and be-all, and the President of Pakistan figures nowhere, unlike the appointment of Federal and State Ministers and Advisors. Before assuming office, Ministers and Advisors take oath administered by the President. They cannot divulge, disclose, reveal, or make public any information or national secrets that come to their knowledge in the course of transacting the business of the nation. While every member of the cabinet is responsible for every act and omission of other members of the cabinet under the principle of collective responsibility, Advisors and Special Assistants stand absolved of any such obligation. Why?
Apparently, the Rules of Business, 1973 have not even once placed before the Parliament. Obviously, the Rules of Business cannot by any stretch of imagination be given the status of an Act of Parliament, not to mention the Constitution. It goes without saying that neither any Act of Parliament nor any subordinate legislation can override the provisions of the Constitution, nor can they be equated with the Constitution. Therefore, the controversy surrounding the appointment of Special Assistants to the Prime Minister, and that, too, without any restrictions on their number is mind-boggling. The argument that there is nothing in the Constitution to prohibit their appointment, does not hold water in the light of the well-settled principle of law that what cannot be achieved directly is not to be allowed to be achieved indirectly.
Now coming to the second limb of the argument that a person holding dual nationality can be appointed an Advisor or a Special Assistant runs counter to the spirit of the Constitution. When Constitution provides clearly that a dual national cannot be a member of the Parliament [See Article 63 (1) (c)] and in a parliamentary form of government, ministers are to be appointed from amongst the members of the parliament, how can ministers be made to sit with the strangers, who are ipso facto ineligible to be members of the parliament?
This is a clear slap on the face of the electorate, that reposes its confidence in its elected members, who have to spend tonnes of money to get elected. The dual nationals seek to serve the nation by getting a berth on the train, without going through the hassle to get a ticket. The ticket checker (read electorate) is not willing to put up with this sorry state of affairs, and is hell-bent on disembarking them.
If the provisions of Article 2-A of the Constitution are read against this backdrop, it would become apparent that the government can only be run by the "chosen representatives", and not otherwise. The legal brain, who conceived the present set-up is virtually putting an affront to the Constitution. The argument of the Prime Minister that even the president of the US is surrounded by un-elected persons not only exhibits his ignorance about the distinction between a presidential and a parliamentary form of government, but overlooks the fact that the President in the U.S.A. is elected directly by the people of the US. In a parliamentary form of government, it is the chosen representatives of the people known as Members of the National Assembly, who elect him as Prime Minister.
Therefore, the President of the US can afford unelected Secretaries/ Ministers, but the Prime Minister can ill-afford such an arrangement and would be guilty of disobeying the dictates of the Constitution. The current hybrid system put in place by the legal eagles appears to be a departure from the Constitution and negating its spirit.
One is also reminded of Article of the Constitution casting an "inviolable obligation" on every citizen of the country to abide by it. The question arises as to whether the appointment of the Special Assistants to the Prime Minister, and that, too, in dozens would not be ultra vires the Constitution.
Last but not least, the Constitution-makers were wise enough and mindful of the commandments of the Constitution. That is why they put a restriction on the number of Advisors, who were not supposed to be members of the Parliament. If the guardians of the state think that they cannot do with 5 Advisors/ technocrats alone and that the members of the Parliament are not competent enough to render advice to the Prime Minister, they are to take the legal route by making an amendment to the Constitution to make room for the Special Assistants, of course, putting a restriction on their number. By the way, what are the Ministers made for, if they are not to be consulted and their input is not to be taken into account by the Prime Minister? In Punjabi vernacular, "wazir kahey ko banaye jatey hain?” The nation has to bear heavy expenses to maintain an army of them. If emperor Akbar could run the administration of the entire subcontinent by 9 pearls (nau ratan), has the modern education so deteriorated that it cannot produce at least nine wazirs worthy of this nation? Please don’t make a fool of the nation and demean people’s will enshrined in the constitution.
At the very outset, it can be stated without a fear of contradiction that the Constitution is completely silent on the appointment of Special Assistants. No Act of Parliament has been made to date to recognise this category as a legal entity. Even a novice in law knows full well that what is not expressly provided for in the Constitution is not to be read into it. The concept of casus omissus is well known to the legal circles. Simply stated, it means that if there is an omission in law, it cannot be supplied by the Courts. In other words, what is not explicitly stated shall be deemed to have been excluded. The aforesaid principle of law for the construction of statutes is equally applicable to the construction and interpretation of the Constitution.
Needless to add, if a law is found in conflict with a provision of the Constitution, it is struck down by the Superior Courts as they exercise their power of judicial review.
It seems that some guru or a legal genius found a way around the provisions of the Constitution, he certainly hit upon a novel idea. He dug a tunnel under the Constitution by introducing and inducting Special Assistants via the Rules of Business, 1973, intended for running the federal government. Before touching upon the relevant rule that has caused so much confusion, it is worth emphasizing that under Article 92 of the Constitution, ministers are appointed by the President, albeit on the advice of the Prime Minister. If this is the scheme envisaged by the Constitution, how can it be short-circuited and circumvented by giving a free hand to the Prime Minister to appoint directly anybody a personal assistant to himself. After all, this is not a kingdom to view Special Assistants as "khadmeen" to the Prime Minister.
The argument put forward by the proponents of the Special Assistants is premised on Rule 4(6) of the Rules of Business, 1973. This rule reads as under:
“There may be a Special Assistant or Special Assistants to the Prime Minister with such status and functions as may be determined by the Prime Minister”.
Going by this rule, the Prime Minister is the end-all and be-all, and the President of Pakistan figures nowhere, unlike the appointment of Federal and State Ministers and Advisors. Before assuming office, Ministers and Advisors take oath administered by the President. They cannot divulge, disclose, reveal, or make public any information or national secrets that come to their knowledge in the course of transacting the business of the nation. While every member of the cabinet is responsible for every act and omission of other members of the cabinet under the principle of collective responsibility, Advisors and Special Assistants stand absolved of any such obligation. Why?
Apparently, the Rules of Business, 1973 have not even once placed before the Parliament. Obviously, the Rules of Business cannot by any stretch of imagination be given the status of an Act of Parliament, not to mention the Constitution. It goes without saying that neither any Act of Parliament nor any subordinate legislation can override the provisions of the Constitution, nor can they be equated with the Constitution. Therefore, the controversy surrounding the appointment of Special Assistants to the Prime Minister, and that, too, without any restrictions on their number is mind-boggling. The argument that there is nothing in the Constitution to prohibit their appointment, does not hold water in the light of the well-settled principle of law that what cannot be achieved directly is not to be allowed to be achieved indirectly.
Now coming to the second limb of the argument that a person holding dual nationality can be appointed an Advisor or a Special Assistant runs counter to the spirit of the Constitution. When Constitution provides clearly that a dual national cannot be a member of the Parliament [See Article 63 (1) (c)] and in a parliamentary form of government, ministers are to be appointed from amongst the members of the parliament, how can ministers be made to sit with the strangers, who are ipso facto ineligible to be members of the parliament?
This is a clear slap on the face of the electorate, that reposes its confidence in its elected members, who have to spend tonnes of money to get elected. The dual nationals seek to serve the nation by getting a berth on the train, without going through the hassle to get a ticket. The ticket checker (read electorate) is not willing to put up with this sorry state of affairs, and is hell-bent on disembarking them.
If the provisions of Article 2-A of the Constitution are read against this backdrop, it would become apparent that the government can only be run by the "chosen representatives", and not otherwise. The legal brain, who conceived the present set-up is virtually putting an affront to the Constitution. The argument of the Prime Minister that even the president of the US is surrounded by un-elected persons not only exhibits his ignorance about the distinction between a presidential and a parliamentary form of government, but overlooks the fact that the President in the U.S.A. is elected directly by the people of the US. In a parliamentary form of government, it is the chosen representatives of the people known as Members of the National Assembly, who elect him as Prime Minister.
Therefore, the President of the US can afford unelected Secretaries/ Ministers, but the Prime Minister can ill-afford such an arrangement and would be guilty of disobeying the dictates of the Constitution. The current hybrid system put in place by the legal eagles appears to be a departure from the Constitution and negating its spirit.
One is also reminded of Article of the Constitution casting an "inviolable obligation" on every citizen of the country to abide by it. The question arises as to whether the appointment of the Special Assistants to the Prime Minister, and that, too, in dozens would not be ultra vires the Constitution.
Last but not least, the Constitution-makers were wise enough and mindful of the commandments of the Constitution. That is why they put a restriction on the number of Advisors, who were not supposed to be members of the Parliament. If the guardians of the state think that they cannot do with 5 Advisors/ technocrats alone and that the members of the Parliament are not competent enough to render advice to the Prime Minister, they are to take the legal route by making an amendment to the Constitution to make room for the Special Assistants, of course, putting a restriction on their number. By the way, what are the Ministers made for, if they are not to be consulted and their input is not to be taken into account by the Prime Minister? In Punjabi vernacular, "wazir kahey ko banaye jatey hain?” The nation has to bear heavy expenses to maintain an army of them. If emperor Akbar could run the administration of the entire subcontinent by 9 pearls (nau ratan), has the modern education so deteriorated that it cannot produce at least nine wazirs worthy of this nation? Please don’t make a fool of the nation and demean people’s will enshrined in the constitution.