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Petitioner: Farrukh Nawaz Bhatti VS Respondent: Prime Minister of Pakistan, Prime Minister's Office, JUDGMENT
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Ghulam Azam Qambrani Title:Farrukh Nawaz Bhatti vs Prime Minister of Pakistan, Prime Minister's Office,
JUDGMENT
Reported As: 2020 IHC 166 Result: N/A Judgment JUDGMENT AAMER FAROOQ, J. This judgment shall decide the instant petition as well as Writ Petition No.1870 of 2020, as common questions are involved. 2. The petitioner , in Writ Petition No.01 of 2020, has challenged the vires of Rule 4(6) of Rules of Business, 1973 being ultra vires to the Constitution of Islamic Republic of Pakistan, 1973 and consequentially the appointment of respondents No.3 to 18 as Special Assistants to the Prime Minister having the status of the Ministers of State or the Federal Ministers, as per the notification s of their appointments be set-aside. The petitioner also questioned the authority of law under which respondents No.3 to 18 have been appointed as Special Assistants to the Prime Minister having the status of Minister for State or the Federal Minister . 3. The petitioner , in Writ Petition No.1870 of 2020, has challenged the notification dated 25.04.2019, appointing respondent No.3 as Chairman of the Cabinet Committee on privatization and respondents No.4 and 5 as the Members of the referred Committee. 4. Learned counsel for the petitioner , in Writ Petition No.01 of 2020, inter-alia, contended that through various notifications respondents No.3 to 18 have been appointed as Advisors to the Prime Minister or Special Assistants to the Prime Minister . It was contended that under the Constitution of Pakistan, the Federal Government means the Prime Minister and the Federal Ministers. The business of the Government is to be conducted by the referred body as provided in Article 99 of the Constituti on. It was submitted that the Federal Minister is the one, who is either a Member of National Assembly or the Senate and cannot be anyone else. It was submitted that in the referred backdrop, respondents No.3 to 18 though are Special Assistants to the Prime Minister or the Advisors to the Prime Minister but have been conferred status as Ministers for State or the Federal Ministers and they are participating in the meetings of the Cabinet, which is in violation of the spirit of the Constitution. It was further contended that in
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order to conduct business of the Government the Constitution provides framing of Rules, which accordingly was done and the Rules of Business, 1973 were framed. It was contended that under Rule 4(6), the Prime Minister has the power to appoint as many Special Assistants to the Prime Minister as he so pleases and conferred them the status according to his discretion. It was submitted that the referred rule is ultra vires to the Constitution of Pakistan as the Constitution only allows framing of Rules of Business for the purposes of effective running of the Government and affairs of Federation and not the Special Assistant to the Prime Minister . In support of his contentions, learned counsel placed reliance on cases reported as "Messrs Mustafa Impex, Karachi and others. V/s The Government of Pakistan through Secretary Finance and others." (PLD 2016 SC 808), "Fareed Ahmad A. Dayo Vs. Chief Minister , Sindh through Principal Secretary an 5 others" (PLD 2017 Sindh 214). Reliance was also placed on cases reported as "Tariq Aziz-ud-Din' s Case" (2010 SCMR 1301 ), "Muhammad Yasin Vs. Federation of Pakistan through Secretary , Establishment Division, Islamabad and others" (PLD 2012 SC 132 ). 5. Learned counsel for the petitioner , in Writ Petition No.1870 of 2020, inter-alia, contended that Article 92 provides for conduct of business of affairs of the Federal Government, which is to be done by the Prime Minister and the Federal Ministers constituting the Cabinet. It was submitted that the only a Federal Minister can be a Member of the Committee of the Cabinet on any issue and a person, who is not a Federal Minister cannot be a Member as such. It was pointed out that though under the Constitution there can be five Advisors to the Prime Minister , who may be conferred status of Federal Minister but they are not part of Cabinet. Learned counsel pointed out that respondents No.4 to 6 have been appointed as the Advisors to the Prime Minister with the status of the Federal Ministers and have been attending the meetings of the Cabinet and through the impugned notification dated 25.04.2019, have been appointed as Chairman and Members of the Cabinet Committee on privatization, which is against the mandate of the law. It was further submitted that an Advisor or an Assistant to the Prime Minister does not have any executive authority and his/their sole task is to assist the Prime Minister . In support of his contentions, learned counsel placed reliance on cases reported as "Abdul Majeed Zafar and others. Vs. Governor of the Punjab through Chief Secretary and others." (2007 SCMR 330) as well as "Ch. Zahoor Ellahi' s Case" (PLD 1973 SC 383). 6. Learned Additional Attorney General responding to the arguments addressed by learned counsel for the petitioner , in Writ Petition No.01 of 2020, inter-alia, contended that the term Special Assistant to the Prime Minister was never part of the Government of India Acts 1833, 1853, 1858 and/or 1935 as well as the Constitutions of 1956 and 1962, however , the term was introduced by the first time in 1973 Constitution. In Article 260 of the Constitution which provides that the term "service of Pakistan" includes Special Assistant to the Prime Minister . In this behalf, learned Additional Attorney General pointed out that amendment was made in 1973 Constitution through Constitution (Sixth Amendment) Act, 1976, whereby Article 260 of the Const itution was amended. Learned Additional Attorney General further pointed out that the concept of appointment of Special Assistant to the Prime Minister and in particular the appointment of Syed Zulfiqar Abbas Bukhari as Special Assistant to the Prime Minister for Overseas Pakistanis was questioned and examined by the Hon'ble Supreme Court of Pakistan in Constitution Petition No.63 of 2018 and was upheld vide judgment dated 26.12.2018. It was further highlighted that in two recent judgments of this Court, the Hon'ble Chief Justice has also dilated upon the concept of Special Assistant to the Prime Minister and Advisor to the Prime Minister and has held that such posts are valid within the mandate of law. Learned Additional Attorney General placed on record the judgments of this Court in cases titled 'Syed Pervaiz Zahoor Vs. The Prime Minister of Pakistan, etc." (Writ Petition No.2304 of 2020) and 'Malik Munsif Awan Advocate Vs. Federation of Pakistan, etc." (Writ Petition No.2058 of 2020). 7. Learned Deputy Attorney General appearing in Writ Petition No.1870 of 2020, inter-alia, contended that Rule 17 of the Rules of Business, 1973 provides for functioning of the Cabinet and Rule 17(2) provides for formation of the Committees of Cabinet. In this behalf, it was pointed out that under Rule 17(2) ibid, the Prime Minister can appoint any person as Member of the Cabinet, who need not be a Member of National Assembly or the Senate but has to be a Federal Minister or have a status of the Federal Minister . It was contended that it is precisely for the said reasons that the decisions of Committee of Cabinet are to be rectified by the Cabinet.
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8. Arguments advanced by learned counsel for the parties have been heard and the documents placed on record examined with their able assistance. 9. Before adverting to the arguments addressed by learned counsel for the parties and rendering findings on the same, it is appropriate that the prayers made in both the petitions and the relief sought be reproduced. In Writ Petition No.01 of 2020, the petitioner seeks the following prayer:- "In view of the above, it is respectfully prayed that appropriate writs may graciously be issued to the following ef fect:- a) That the Rule 4(6) of the Rules of Business, 1973, is ultra vires to the Constitution and the law, illegal, coram non judice and being such is liable to be set aside ab initio and be set aside in the interest of constitutionalism in the country and for the Rule of Law and Good Governance. b) That the Rule 4(6) of the Rules of Business, 1973, being ultra vires to the Constitution and the law, under which authority of the law and the Constitution of the Islamic Republic of Pakistan the Respondent Nos.3 to 18 are holding their respective offices as the Special Assistants to the Prime Minister (SAPM) with the status of Ministers of the State or the federal Ministers (most of) in terms of different Notifications and as per List available on official websites (Annex-A) or under any other notification, which is not available in public domain. c) That under which authority of the law and the Constitution of the Islam ic Republic of Pakistan, the respondent No.1 is empowered to appoint the Respondent Nos.3 to 18 and confer the status of the Minster of the State or the Federal Minster (as the case may be) to any person including the Respondent Nos. 3 to 18 as contained in different Notifications or as per List (Annex-A) entitling the Respondent Nos. 3 to 18 for their salaries, allowances, perks, privileges, etc., burdening the public exchequer and cash starved as well as debt-ridden economy of the Islamic Republic of Pakistan when there are also the Federal Ministers or the Ministers of the State for the same purposes and subjects when most of the Respondent Nos. 3 to 18 are not possessing any specialization in the respective areas assigned to them except close relations or influence to the Prime Minister or being his favorites or having special personal relations, whatsoever . d) That to declare the appointments of the Respondent Nos. 3 to 18 and confe rring upon them the status of the Ministers of the State and the Federal Ministers (as the case may be) vide Notification and the List (Annex-A) as illegal, ultra vires to the law and the Constitution and exercise of the power by the Respondent No.1 being the void ab initio, coram non judice, mala fide and misuse of discretionary powers only to cause loss to the national exchequer and illegal gain to the Respondent Nos.3 to 18 and to set aside the same ab initio. e) That to declare the actions, decisions or exercise of any power under any law as well as receipt of any financial benefit including their salaries, allowances, perks, privileges, etc., as illegal, void ab initio and illegal gain and direct for recovery of such salaries, allowances, perks and privileges, etc., from the Respondent Nos. 3 to 18 as the arrears of land revenue. f) That to declare the action of the Respondent Nos. 1 and 2 in violation of Articles 3, 4, 5, 8, 18, 25, 27, 91, 92 as well as any other provision of the Constitution of the Islamic Republic of Pakistan as well as the law and cognizable under section 9 of the National Accountability Ordinance, 1999 (Ordinance No.XVIII of 1999) as well as any other law regarding misuse of official authority and public office in force for the time being and further to direct for initiation of necessary criminal prosecution, etc. g) That to declare that the Respondent No.1 and 2 had exercised their powers in violation of the law, rules and the Constitution of the Islamic Republic of Pakistan as well as principles laid down by the Honourable Supreme Court of Pakistan in 1996 SCMR 1349 [In re : Abdul Jabbar Memon and Others ] and PLD 2017 Sindh 214 [Fareed Ahmed A. Dayo v. Chief Minister Sindh], etc., as the appointments of the Respondent Nos.3 to 18 have been made without proper publicity , transparency , merit, competitiveness and specialization, etc., as well as the result of favoritism and nepotism in violation of the Oath of the Respondent No.1.
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h) That to declare that the Respondent No.1 in collusion with the Respondent No.2 has misused official power and discretion as well as the public office in violation of principles laid down by the Honourable Supreme Court of Pakistan in cases cited as 2010 SCMR 1301 [Tariq Aziz-ud-Din's Case]; Corruption of Hajj Arrangements' Case (Suo Moto Case No.24 of 2010); and PLD 2012 SC 132 [Muhammad Yasin v. Federation of Pakistan i.e. Chairman OGRA's Case], etc., only to allow illegal financial gain and misuse of public authority in violation of the law, rules and the Constitution of the Islamic Republic of Pakistan against the principles regarding exercise of discretion. i) That to restrain the Respondent Nos. 3 to 18 from performance of any type of official functions or exercise of any official power under any law, rule or the Constitution or pretend them as the Ministers of State as provided in Articles 91 and 92 of the Constitution of the Islamic Republic of Pakistan, and j) That to direct the Respondent No.19 to investigate and inquire the acts of the Respondent Nos.1 to 18 in terms of section 9 of the National Accountability Ordinance, 1999 (Ordinance No.XVIII of 1999) or any other law, etc., relevant on the subject of misuse of power and discretion. Any other favorable relief may also graciously be granted to the Petitioner as may be deemed just and proper in the facts and circumstances of the case." In Writ Petition No.1870 of 2020, the petitioner seeks the following relief:- "In the above-mentioned facts, circumstances, and legal grounds advanced, this Honourable Court is requested to kindly issue appropriate writ by:- i. Declaring that the impugned notif ication No.F .5/6/2018-com. dated 25th April, 2019 is void, illegal, unlawful, malafide and ultra-vires to Constitutional provisions and set-aside the same Any other relief that this Honourable Court deems fit may also be granted in favour of the Petitioner in larger interest of the public." The business of the Federal Government is to be conducted through Cabinet/Fed eral Government as provided in Articles 91 and 92 of the Constitution. The referred provisions are reproduced below:- [91. The Cabinet.--(1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. (2) The National Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the President. (3) After the election of the Speaker and the Deputy Speaker , the National Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its Muslim members to be the Prime Minister . (4) The Prime Minister shall be elected by the votes of the majority of the total membership of the National Assembly: Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Prime Minister: Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of votes of the members present and voting. (5) The member elected under clause (4) shall be called upon by the President to assume the office of Prime Minister and he shall, before entering upon the office, make before the President oath in the form set out in the Third Schedule: Provided that there shall be no restriction on the number of terms for the of fice of the Prime Minister . (6) The Cabinet, together with the Ministers of State, shall be collectively responsible to the Senate and the National Assembly . (7) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the
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confidence of the majority of the members of the National Assembly , in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly . (8) The Prime Minister may , by writing under his hand addressed to the President, resign his of fice. (9) A Minister who for any period of six consecutive months is not a member of the National Assembly shall, at the expiration of that period, cease to be a Minister and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly: Provided that nothing contained in this clause shall apply to a Minister who is member of the Senate. (10) Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or a Minister of State during any such period.]" "92. Federal Ministers and Ministers of State.--(1) Subject to clauses [(9) and (10)] of Article 91, the President shall appoint Federal Ministers and Ministers of State from amon gst the members of Majlis-e- Shoora (Parliament) on the advice of the Prime Minister: Provided that the number of Federal Ministers and Ministers of State who are members of the Senate shall not at any time exceed one-fourth of the number of Federal Ministers 2[ : ] 3[Provided further that the total strength of the Cabinet, including Ministers of State, shall not exceed eleven percent of the total membership of Majlis-e-Shoora (Parliament): Provided also that the aforesaid amendment shall be effective from the next general election held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010.] (2) Before entering upon office, a Federal Minister or Minister of State shall make before the President oath in the form set out in the Third Schedule. (3) A Federal Minister or Minister of State may, by writing under his hand addressed to the President, resign his of fice or may be removed from of fice by the President on the advice of the Prime Minister .]" 10. The Hon'ble Supreme Court of Pakistan in a recent judgment reported as "Messrs Mustafa Impex, Karachi and others. V/s The Government of Pakistan through Secretary Finance and others." (PLD 2016 SC 808) dilated upon the concept of Federal Government and held that the same means the Prime Minister and the Ministers collectively . The Constitution in Article 93 provides for appointment of the Advisor to the Prime Minister , which can be maximum five in number . However , the post of Special Assistant to the Prime Minister is not provided per se in the Constitution. The Rules of Business have been framed under Article 99 of the Constitution and Rule 4(6) of Rules of Business, 1973 provides for the appointment of Special Assistants to the Prime Minister . There is no cap on the number of Special Assistants to the Prime Minister that can be appo inted by the Prime Minister and he can confer upon them such status as he deems appropriate. The relevant rule is for the sake of convenience reproduced below:- "4 Organization of Divisions.....(6) 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". Rule 4(6) of the Rules of Business, 1973 came under challenge before this Court in case titled "Malik Munsif Awan Advocate Vs. Federation of Pakistan, etc." (Writ Petition No.2058 of 2020), the Hon'ble Chief Justice of this Court, vide order dated 30.07.2020 dismissed the petition. It was observed as follows:- 3. The Rules of 1973 have been made and duly notified by the Federal Government in exercise of powers vested under Articles 90 and 99 of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as the "Constitution"]. Sub Article 3 of Article 99 empowers the Federal Government to make rules for the allocation and transaction of its business. It is pursuant to the said powers that the Federal Government has made the Rules of 1973 and has described the "Organization of Divisions" in Rule 4 ibid. Sub Rule 6 of Rule 4 enables the Prime Minister to appoint Special Assistant or Special Assistants and to determine their status and functions. 4. The Rules of 1973, particularly Rule 4(6) are not in conflict with the provisions of the Constitution. Special Assistants are not members of the Federal Cabinet. Moreover , they are distinct from Advisors
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appointed by the President on the advice of the Prime Minister under Article 93(1) of the Constitution. The Prime Minister is the Chief executive of one of the most important organs of the State and has to perform multiple/complex functions. A person elected as Prime Minster is answerable to the people of Pakistan and the Majilis-e-Shoora (Parliament). The onerous role of the Prime Minster described under the Constitution cannot be performed by the latter alone. In order to enable the Prime Minster to transact business of the Executive organ of the State, the latter ought to have the freedom to appoint officials or other persons for assistance. Rule 4(6) is one of such modes whereby the Prime Minister has been empowered to appoint Special Assistants. There is no restriction regarding the number of Special Assistants that can be appointed by the Prime Minister ." 11. The learned counsel for the petitioner , in Writ Petition No.01 of 2020, placed reliance on decision of the Division Bench of Hon'ble Sindh High Court in case titled "Fareed A. Ahmad Dayo Vs. Chief Minister Sindh" (PLD 2017 Sindh 214) to argue that the appointment of a Specia l Assistant to the Prime Minister is agains t the mandate of the Constitution. It is observed with reverenc e that the instant decision is not applicable to the instant case inasmuch as the provision for appointment of Advisor of Chief Minister especially Sindh is completely different from the way the Federal Government works. Since the law governing the Federal Government and/or Provincial Governments is different, the reliance cannot be placed on the said judgment of the Hon'ble Sindh High Court. The decision of this Court regarding the vires of Rule 4(6) and the appointment of the Special Assistant to the Prime Minister is very specific and categoric and nothing was pointed out to indicate that the same is in violation of the spirit of the Constitution. In view of the above judgment and within the frame work of the Constitution and the law, it is reiterated that the Special Assistant to the Prime Minister can be conferred any status as the Prime Minister so desires at his discretion but the conferring of the status would not make the Special Assistant to the Prime Minister a person of that designation. Special Assistants to the Prime Minister , whose appointments are under challenge in present petition have been conferred with the status of Ministers of State but the said designation does not make the Special Assistants as Ministers of State and by virtue of the notifications they are only to have this status for the purposes of perks and privileges. The Special Assistants to the Prime Minister enjoying the status of Ministers for State are by no means Members of the Cabinet as they are not elected persons and/or Federal Ministers. The Hon'ble Supreme Court of Pakistan in case reported as "Lahore Development Authority through D.G. and others Vs. Ms. Imrana Tiwana and others" (2015 SCMR 1739 ) laid down the parameters/principles for challenging the vires of statutes or delegated legislation. The august Apex Court held as follows:- "Following are the principles which must be applied and considered by the court when striking down or declaring a legislative enactment as void or unconstitutional: (i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two; (ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity; (iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; (iv) Court should abstain from decidin g a Constitutional question, if a case could be decided on other or narrower grounds; (v) Court should not decide a larger Constitutional question than was necessary for the determination of the case; (vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution; (vii) Court was not concerned with the wisdom or prudence of the legislation but only…
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