Opinion

A ship without its captain

Pakistan is drifting aimlessly in turbulent waters without there being a visible captain on the deck

Masroor Shah June 03, 2016

The writer is an advocate of the Supreme Court of Pakistan and tweets @BarristerMShah

While Prime Minister Nawaz Sharif is gradually recovering from the influence of strong anaesthesia in London, the federation of Pakistan is drifting aimlessly in turbulent waters without there being a visible captain on the deck. During all those hours that the prime minister was lying unconscious on the operation table, with him the office of the prime minister also remained comatose without having any clue as to whose command it was subservient to.

Right from the moment the prime minister started taking preparatory drugs for his major surgery in London, clouds of uncertainty started hovering around the country as to who would hold the reins of power during the time he remained unconscious. Though, unofficially, an attempt was purportedly made by the prime minister to devolve day-to-day responsibilities of the government upon his trusted finance minister but legally speaking, this entire exercise seems to be a mere facade and a sheer nullity in the eyes of the law as the Constitution does not enunciate any mechanism for nomination of an acting head of government should the incumbent fall ill or otherwise is unable to perform his functions.

Some vociferous PML-N stalwarts are justifying the prime minister’s insistence on clinging to office despite temporary incapacity on the pretext that he can legally run the affairs of government through his ministers without there being any need for him to be physically present in Pakistan. One such clause that is vehemently being relied upon is Article 90, which stipulates that in the performance of his functions under the Constitution, the prime minister may act either directly or through federal ministers. This enunciation is made in the context of distribution of government functions and its division into various ministries. The assumption of existence of power in the hands of the prime minister simply to delegate his functions to a defacto acting prime minister on the basis of Article 90 (2) is preposterous. Firstly, because as in the case of the president, governors, chief justice of Pakistan, provincial high courts and the Federal Shariat Court, Articles 49 (2), 104, 180, 196 and 203 C (8) expressly provide for the appointment of acting president, governor and chief justices in case the incumbent is out of the country or otherwise unable to perform official functions. If the framers of our Constitution actually contemplated the appointment of an acting prime minister, it would have been expressly provided for like in the case of other constitutional offices. As a matter of fact, the Constitution in its original form (Article 95, as it was prior to March 2, 1985) did enunciate a mechanism whereby in the event of the prime minister’s absence from the country, the senior most federal minister could automatically start performing functions of the prime minister till the incumbent returned to Pakistan. This provision was, however, amended and the constitutional scheme for the appointment of an acting prime minister was scrapped.

Though the question of appointment of an acting prime minister or delegation of powers of the head of the government unto a federal minister never directly came before the courts, the Supreme Court, nevertheless, in the Ashraf Tiwana Case (2013 SCMR 1159), held that discretionary authorisation conferred on a person or body by statute could not be delegated. All statutory authority is fiduciary in nature; it is vested in the functionary or body specified in that statute and is therefore, as a rule, non-delegable. In view of the wisdom derived from this principle set out by the apex Court, all actions carried out by Ishaq Dar, purportedly under the garb of delegated authority from the prime minister, are likely to be struck down as being unconstitutional and ultra vires.

More surprisingly, even in cases where the law does expressly endow upon the prime minister the authority to delegate certain powers, particularly those pertaining to national security, Nawaz Sharif did not exercise the same and instead went under anaesthesia with the reins of the country’s strategic weapons tightly held in his hands. The deployment and operational command and control of Pakistan’s strategic nuclear arsenal is overseen by the National Command Authority, which has the prime minister as its chairman. Section 4 of the National Command Authority Act of 2010 clearly envisages delegation of the power of chairman from the prime minister to the Chairman Joint Chiefs of Staff Committee (CJCSC) in circumstances that we are facing today. Unfortunately, the prime minister did not delegate this pivotal responsibility upon the CJCSC before being sedated. With this omission, I guess the situation no more remains one of mere constitutional conundrum; rather it pertains to our national security and strategic defence. Keeping the precarious security situation in the region, particularly in the aftermath of the recent drone attack, in mind, if a need arises to take a decision qua strategic weapons, will the prime minister be up to the task or will the finance minister chair the meetings of the National Command Authority also?

While I have full sympathy with the person of Nawaz Sharif and fervently hope that he recovers steadily, the state and the affairs of government nevertheless transcend beyond individuals. It is imperative that the present Constitution be immediately amended so as to revive Article 95 in its original form and provide for the appointment of acting prime minister as is done in the case of other high constitutional offices, failing which the ship of the Pakistani government will continue to wander aimlessly without its captain if such a situation arises again.

Published in The Express Tribune, June 4^th, 2016.

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COMMENTS (15)

Tyggar | 8 years ago | Reply @zahid In a sovereign state, the government has the right to take action against militant groups In the same way like your army went into lal masjid. You seem to have very selective memory. People cannot form their own militant groups threatening others with violence. Being a Pakistani and harbouring all the militant groups you will not understand

zahid | 8 years ago | Reply @Tyggar: Indra attacked a Sikh temple. The most revered of all religious places. I'm surprised you never heard of this. It was a pretty shameful act.

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Tyggar | 8 years ago | Reply @Rex Minor: I believe Abu bakr Baghdadi knows Islam better than you. After all he is an Islamic scholar. Btw Whom did Indira Gandhi massacre?

vinsin | 8 years ago | Reply @Rex Minor: You are stating that Islam is the most radical faith among Ibrahimic faiths. What is the source of Indira Gandhi and Bush senior and junior becoming radical? Where are Zorastrains, Arab Pagans, Egyptians, Mesopotamians, Hindus and Buddhist of Pakistan and Afghanistan? Why Indira Gandhi stopped Bangladesh Genocide if her aim was to mercilessly massacred human species? Why Bush tried to save Iraqi people from Sadam massacre?

Rex Minor | 8 years ago | Reply @Menon: Drifting started as soon as Pakistan was carved out of India in 1946 and completed the disastrous drfit towards radical isalm with Zia. Nonsense, Islam Sir is not a radical religion but the reformed one among the Ibrahimic faiths. It is the people who are radicals or liberals, Zia was not an exception among the radicals, there are countless others including Indira Gandhi from the East and the Bush senior and junior leading the West who have mercilessly massacred human species. Rex Minor

Menon | 8 years ago | Reply You are saying the drifiting is because Nawaz is in a Londan Hospital but you are completely wrong in your assessment. Drifting started as soon as Pakistan was carved out of India in 1946 and completed the disastrous drfit towards radical isalm with Zia.

Kayani | 8 years ago | Reply true...even these politicians who claim to protect our rigjhts don't know anything about the laws. sad but true...

kanu mistry | 8 years ago | Reply This is a routine operation and should well have been done in Pakistan itself. Why to go all the way to London?

kanu mistry | 8 years ago | Reply You have till not asked the basic question. Why at all this operation should have been done in London? This is just a routine heart operation and could well have been done in Pakistan itself. This kind of operations are being done in my city daily basis in multiples. My own operation of knee transplant was done within 25 minutes, just with local anaesthesia, with my full consciousness through out the operation. .

Rex Minor | 8 years ago | Reply @Feroz: I have never heard of any head of State resigning when he had to go through a medical procedure. of The guy is not the head of state per se but the Prime Minister who is accused of hoarding public wealth in offshore account known from Panama leaks causing a heart attack which necessitated a surgical procedure. If he falls so will all his cronies and this has been the chronic illness of almost all previous heads of Governments in this musical chair game. The land requires a separate Constitution court to interpret the constitution and propose the necessary amendments. . Rex Minor

Farheen | 8 years ago | Reply Great piece! The question is addressed in a true legal sense. Here we are not talking about journalistic ethics or oppositional negativity constitution is constitution it doesn't allow PM to devolve his powers. I don't know why this prime minister always needs sympathies. He has majority in parliament why he never raised this question in NA and amend the constitution? If our prime minister is needing sympathies what the nation will do...can he justify his unconstitutional act when he is holding this office 3rd time...

Whatacountry | 8 years ago | Reply The writer must be a good lawyer. He has successfully complicated a simple case. How can a Prime Minister direct his or acts through his ministers if he is under deep anesthesia for a major medical procedure. Constitution had been blatantly violated and is still being violated. We didn't know Mrs Captain retd Safdar was a cabinet member!

Feroz | 8 years ago | Reply I have never heard of any head of State resigning when he had to go through a medical procedure. Nest door PM Manmohan Singh also went through the same without unconstitutional forces or political opposition demanding a resignation. This orchestrated chorus reflects the wheels within wheels operating within Pakistan. Sadly, journalistic ethics has never been compromised so badly.

Shah | 8 years ago | Reply Unless we get rid of brown sahib thinking Pakistan will not progress Zardari and sharif are billion Nares and if sneeze comes they rush to London for treatment All wealth of poor country in the coffers Get the money back from Swiss accounts and kick these brown sahibs out The country has first class cardiac surgeons . Shane is all one can say

Paul | 8 years ago | Reply More surprisingly, even in cases where the law does expressly endow upon the prime minister the authority to delegate certain powers, particularly those pertaining to national security, Nawaz Sharif did not exercise the same and instead went under anaesthesia with the reins of the country’s strategic weapons tightly held in his hands Does anyone in their right mind think that Mian Nawaz Sharif has any grip over the nuclear football?

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