Lawfulness Of The National Development Council
Few days ago, the Prime Minister (PM) of Pakistan approved the establishment of the National Development Council (NDC). The same was notified vide notification of the Cabinet Division. The Terms of Reference (TOR) of the NDC are that it shall set policies for development, formulate policies to achieve accelerated economic growth, approve long term planning for national and regional connectivity and provide guidelines for regional connectivity.
The composition of the NDC is exceedingly captivating and shockingly unprecedented. In addition to comprising the PM, Foreign Minister, Finance Minister, provincial chief ministers and few other members hailing from higher echelons of the state machinery, it also includes the Chief of Army Staff (COAS). Such escapade of the PM has attracted condemnation from various quarters.
Some questioned the legality of procedure adopted for establishment of NDC, while others expressed concerns on its composition. Mr Raza Rabbani expressed his displeasure, terming NDC as an extra-constitutional body which cannot run parallel to a constitutional body formed under Article 156 i.e. National Economic Council. He also questioned the wisdom behind the decision to include COAS as a member.
In view of the scheme of our constitution and jurisprudence settled by the superior courts, this exploit of PM, apart from violating Article 156 of the Constitution, raises two other intriguing legal questions:
First, whether the establishment of the NDC through a notification is without lawful authority?
In “Grammar of Politics”, Harold Laski theorized that political power is divisible into three parts. The legislative power which enacts the laws, the executive power which seeks to apply laws and the judicial power which determines the legality of the manner in which laws are applied. From Laski’s theory, one can infer that the powers of the executive are like a double edged sword; if used with care it leads to justice and if used in an unchecked manner it becomes a source of tyranny. Thus, constitutional democracies require constant check on the executive organ either through the legislature or judicial review. The executive is under continuous scrutiny and is required to function within limits prescribed by law; neither can it act excessively nor without lawful authority i.e. it can’t do anything which isn’t sanctioned by an enactment.
As per Halsbury’s Laws of England, government machinery’s arrangement and the parameters of powers which belong to the various parts of this arrangement are provided by the law. Law is the singular source of governmental powers, the presence or absence of power is a matter of law and not of fact and is to be determined by reference to some enactment or judgment.
From Halsbury principle, it becomes clear that the executive has inherent powers, it can only develop its authority from the constitution, statute or judgment. Halsbury Principle was recognized by the Supreme Court in Pakistan Muslim League vs Federation of Pakistan 2007. The Court held that law is the only source of authority; there is no inherent power in the executive, except what has been conferred on it by the law. The principle which flows from this verdict makes a lot of sense as under our constitutional parlance, the government exercises its powers through the chosen representatives; executive has only those powers which the chosen representatives of the people delegated to it through law. Every executive decision has to be justified with reference to some law otherwise such exercise will be deemed to be nullity in law.
Pursuant to Article 189 of the Constitution, a decision of the Supreme Court which enunciates principle of law is binding on all organs of the state including the PM, a plain reading of the notification reveals that it has not been issued under any legal provision as the notification fails to make reference to it.
Ostensibly, the executive branch of the state machinery has exercised its so called inherent power for creation of the NDC which contravenes the apex Court verdict and Halsbury Principle. Thus, it’s an irresistible conclusion that the PM has acted without lawful authority.
Second, whether inclusion of Army Chief as member in the NDC is without lawful authority?
Second part of Art. 245(1) of the Constitution states “The Armed Forces…, subject to law, act in aid of civil power when called upon to do so”. “Subject to law” here means armed forces can act in aid of civil power only if a legislation in this regard is in field. Since no such law was passed or is in field, the inclusion of COAS in NDC is without lawful authority.
Even if it is assumed that a legislation was in existence, still inclusion of COAS will fail to fall within ambit of “Acting in aid of Civil Power” especially in view of the judgment of the apex Court in case of District Bar Association vs FOP 2015. Wherein in the court held that second part of Art. 245(1) was relevant to internal disturbances, be it a civil commotion, natural disaster, insurrection or insurgency. The TORs laid down by the notification fail to mention any such internal disturbance.
Upshot of the above discussion is, either the Prime Minister is making decisions in utter haste or is being improperly advised on legal matters. Recently, a failed attempt to remove Tax Ombudsman was made, prima facie without adhering to provisions of Tax Ombudsman Ordinance 2000. The PM needs to know that in Europe medieval barons often justified their rebellions on the ground that the king was ill counseled.