SHC judgment on sugar commission raises some questions

ISLAMABAD: The Sindh High Court (SHC), in its judgment on the sugar commission, has raised some questions, and discounted the practice of issuance of presidential ordinances by all governments and the role of unelected members of the cabinet.

The SHC expressed “deep concern as to certain issues” which cropped up during the hearing on the petition. “In particular, whether the government is being carried out in accordance with the intent and spirit of the Constitution,” was one question raised by the ruling.

It said this is because the Constitution envisages a parliamentary democratic form of government where the government is run by the elected MPs, who have received a mandate of the people whom they are accountable to. Yet it appears that a large number of persons, who consistently attend cabinet meetings, are unelected persons especially special assistants to the prime ministers (SAPMs), who, in some cases, would not even qualify to be elected under the Constitution as MP and have no accountability to the people as they are unelected which prima facie appears to be contrary to Article 91 and the scheme of Constitution, the judgment said.

It said the framers of the 1973 Constitution themselves by virtue of Article 92 very wisely recognized that there may be portfolios which require particular expertise and allowed the president on the prime minister’s advice to appoint five unelected advisers in order to assist the premier in perhaps filling positions which require specialized input which is not available amongst the elected representatives of Parliament, for instance, the finance ministry.

The verdict disapproved the governments’ practice of ruling through a large number of presidential ordinances as against acts of Parliament, when in many cases the constitutional criteria governing the issuance of ordinances have not been met as they can only be promulgated if Parliament is not in session and ‘if circumstances exist which render it necessary to take immediate action’. Another question the ruling raised was that whether by governing through ordinances successive governments including the present one may in effect rather than abiding by and following the Constitution as per the command of Article 5 are by design bypassing or circumventing the relevant constitutional articles without good reason and for reasons not contemplated by the Constitution.

The bench wrote that it must not lose sight of the fact that both our legislature and executive are the creation of the Constitution which is the supreme law of the land and under Article 5 every citizen owes obedience to the Constitution and the law in both letter and spirit which also applies to the legislature and executive.

The judgment rejected any kind of government meddling in the accountability process being carried out by the National Accountability Bureau (NAB). It said the role of the adviser on accountability only serves to undermine the NAB’s independence and credibility as this leads to the perception that the government is working hand in glove with the NAB against its opponents especially when the perception arises that it is mainly opponents of the government who NAB is proceeding against as observed recently by Supreme Court in Khawaja Saad Rafique case and where the adviser regularly lambasts the opponents of the government for corruption via media and keeps mum on any such acts allegedly committed by the government (quite naturally as he is a part of the government). As such this undermines the perception of even-handed accountability across the board in Pakistan in the eyes of the public at large.

The verdict said it is also difficult to understand the need for an adviser on interior when there is already a federal minister of interior and how they can co-exist within the framework of the Rules of Business in terms of allocation of business to the ministry of interior and which rules make the minister of interior head of that ministry. This does not lend itself to either good governance or clarity in governance, it said.