Rule of law or men?

The prime minister has started convening weekly meetings of the cabinet, as he ought to under the Rules of Business. Matters that require the federal government’s attention are being placed on the agenda and discussed by ministers, resulting in decisions being made.

Why has the cabinet, which previously only had intermittent awakenings, come back to life in the second last year of this government’s term? Is it because the army chief has called out the faltering governance? Is it because the PTI is headed to Raiwind? Has the PM undergone a behavioural change since his heart surgery?

The behavioural change has been forced by a recent judgement of the Supreme Court in the matter of Mustafa Impex. There is no rhetoric in the ruling, no populism, no playing to the gallery. The court doesn’t try to bend the government’s ear as often happened in Justice Chaudhry’s SC. There is no judicial overreach. The court has done what it is required to do: painstakingly interpret the meaning of words used in the text of our constitution.

And the outcome is monumental. The judgement, authored by Justice Saqib Nisar, reminds one of the oft-forgotten fiduciary relationship between citizens and their representatives in government to whom citizens delegate authority to govern the state on their behalf. Together with other recent judgements by Justice Nisar, it articulates an approach toward democracy and the manner of exercise of power that may not be sensational but will be consequential.

Mustafa Impex explains that Article 90 of the constitution defines the federal government to include the PM and federal ministers and that the PM, while being “the single most important person in the cabinet… does not stand in the position of the cabinet. He is neither a substitute nor a surrogate for the cabinet”. And that “unilateral decisions taken by him would be a usurpation of power”. This is a stark reminder that rule of men is a bygone and our constitution prescribes rule of law.

The court has held that Article 99 as amended by the 18th Amendment has done two things. One, “the power of delegation [by the federal government] to officers and subordinate authorities has been taken away” and thus it is only the cabinet (and not a minister, a ministry or even the PM) that can exercise powers vested in the federal government by the constitution or an act. And two, the Rules of Business are mandatory and “binding on the government and a violation of the terms thereof can be fatal to the exercise of executive power.”

Mustafa Impex rules that, “[A]ll statutory rules, including those of a fiscal nature, are subordinate legislation. The power to enact subordinate legislation has to be conferred by substantive law. The Rules of Business, which merely regulate procedural modalities, cannot conceivably do so.” What that means is that: (i) the power assumed by government to frame rules or regulations needs to be tracked to explicit statutory provisions, and (ii) wherever the legislature has delegated such power to the executive, the cabinet must authorise such rules.

Mustafa Impex is bad news for baboos. It holds that secretaries can propose and process summaries, but can’t be treated as the federal government. The judgement attacks our insidious SRO culture. It emphasises that the principles highlighted in the judgement shall apply with special force to fiscal matters.

In our polity, yearning for state power is often driven by the desire to exercise arbitrary control over state largess and use state patronage to entrench oneself in power. Mustafa Impex thwarts the ability of public officials to distribute largess at whim. It rules that “all discretionary spending without prior approval of the Cabinet is contrary to law” and that “ex post facto approval by the Cabinet will not suffice since money once spent cannot be unspent”. This takes away discretion exercised by the FBR and the finance ministry.

There are at least three things that stand out in Justice Saqib Nisar’s approach to the constitution. One, he views democracy as the foundation of a constitutional order. In his 21st Amendment (minority) judgement, he held that “it is democracy and its attendant forces which are the true foundation of an independent judiciary. When we weaken democracy we weaken the judiciary. It is, in my opinion, essential for this court to do nothing which may lead, directly or indirectly to a weakening of the foundations of democracy.”

Two, his approach to the judiciary’s mandate is temperate, unadventurous and textual. In the 21st Amendment case he asked, “where lies the constituent power of the state (for that is the power by which the constitution is amended): with an unelected judiciary, although certainly acting with the utmost good faith and in the national interest, or with the chosen representatives of the people, even though they may not always come up to the expectations of the public? I would respectfully answer: with the latter rather than the former.”

He further held that, “It is, in my opinion, a profound error to believe that every conflict or difference of opinion in the country must be subject to a judicial resolution. There are many questions of the utmost importance which are best left to be decided through democratic modalities.”

Overriding the Lahore High Court’s decision in Imrana Tiwana (and allowing the Signal Free Corridor Project to continue), he held that, “The court will not declare a statute unconstitutional on the ground that it violates the spirit of the constitution unless it also violates the letter of the constitution…The court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality.”

And three, his rulings suggest that to prevent abuse power ought to be distributed and not monopolised. He noted in the 21st Amendment case that “conferment of exclusive and complete power on a single individual, whether he be a member of the Executive or the Judiciary, is surely less desirable then a meaningful, purposeful and consensus-oriented system…” Mustafa Impex was a long time coming.

Justice Nisar is in line to assume the office of chief justice at the end of this year. In a country where democracy remains frail, civilian institutions weak and decision-making whimsical, his reading of the constitution will matter. And a test case for application of principles emphasised in his rulings will be structuring the administrative powers vested exclusively in the office of the CJ (in relation to forming benches, fixing cases, nominating judicial candidates etc) to make their exercise more transparent.

But back to the PM. Should Mustafa Impex bother him? Is it really devastating to be unable to spend public money, off budget, at whim? Will it take the joy out of ‘ruling’ if decisions are routed through the cabinet, which, in theory, is ‘collectively responsible’ to parliament? And will it even matter? Will grown men sitting in the cabinet speak their minds in front of a PM who picks ministers at his discretion and, more importantly, awards party tickets at his discretion?

A powerful federal minister with great storytelling skills (especially in his signature Punjabi) once gave an account of a cabinet meeting from the 90s. He was seated next to a revolutionary from southern Punjab (no longer in the PML-N). The meeting started and the revolutionary said to this minister, “Now you’ll see how everyone around the table will indulge in flattery and how that will make Mian Sahib happy.” Surely the circus started as predicted. Then he said, “You’ll now see my performance for which Mian Sahib will give me a pat on my back.”

The revolutionary sought permission to speak out of turn, as he had to leave early to catch a flight. On being granted permission, speaking about Mian Sahib’s genius and the unconditional love people had for him he took flattery to the next level, till Mian Sahib broke into a big smile.

Mian Sahib called the revolutionary over to the head table and patted him on the back as he prepared to leave the room. But before leaving, standing beside Mian Sahib, the revolutionary gave the minister a glance. It said, “I told you so.”

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu