Elevating the cabinet

In a seminal verdict delivered last month, the Supreme Court has sought to restore balance to the constitutionally ordained system of governance in Pakistan. In a series of appeals filed by importers of cellular phones and textile goods against the withdrawal of tax concessions granted by the federal government, the Supreme Court has defined the outer limits of the executive’s authority and discretion. It is important to understand the Court’s decision.

The Court concludes that under our constitutional scheme the “Federal Government” has been conceptualised as a “collective entity” with executive authority reposed not in the office of an individual but in the cabinet, comprising a cohort of ministers and headed by the prime minister. Pursuant to Article 90, such authority is to be exercised in the name of the president, but by the cabinet, which acts through the prime minister. The cabinet is tasked with the responsibility of advising the president in the exercise of his functions, who in turn is, for all practical purposes, bound by such advice. The real locus of executive decision-making then lies with the cabinet, which must function as the primary arena where questions of governance and executive decision-making are addressed, discussed and deliberated upon.

The principle of collective ministerial responsibility enshrined in Article 91(6) of the Constitution is, in the Court’s opinion, the logical corollary of such arrangement of executive power. The Constitution, read with the rules of business, mandates that the cabinet shall, as a collective, be responsible to parliament for the advice tendered to the president or any executive action undertaken in the latter’s name. The ascription of responsibility, the Court reasons, must of necessity be linked with the exercise of power. No one person, therefore, should be allowed to exercise on his own the powers that have been entrusted to the cabinet as a whole, and for which it is to be collectively accountable.

It follows, therefore, that the prime minister must be viewed as “a first amongst equals”, whose decisions must eventually be grounded in the deliberative processes of the cabinet. The prime minister, the Court has ruled, cannot take unilateral decisions on fiscal or budgetary matters or legislative proposals presented before parliament or passed by the president and must first seek approval of the cabinet. To permit the prime minister to decide matters to “the exclusion of his cabinet would”, the Court stated, “turn the Cabinet into … a rubber stamp” and in doing so “violate the letter and spirit of our Constitution”.

By elevating the cabinet to its constitutionally-ordained status, the Supreme Court has sought to correct the existing inversion of our parliamentary form of government into a prime ministerial one, where excessive discretion may have been permitted to the prime minister. That the cabinet has met a mere 20 times in the last three years is indicative of the manner in which the state’s executive functions are being discharged. Unless government decisions emerge from deliberation and consensus, and are structured within a system of accountability, executive authority can tend towards absolutism.

Irked by the ‘restrictive’ judicial interpretation of the nature and scope of its powers, the federal government has reportedly decided to seek a review of the judgment. It may argue that: delegation by the state of its (cabinet’s) executive functions is the sine qua non of efficient governance, and the conclusion that executive decisions must emerge from the cabinet is misplaced. The Supreme Court has ruled, however, that the Constitution does not permit such delegation. Furthermore, rules of business framed pursuant to the Constitution by the federal government reaffirm the primacy of the cabinet in executive decision-making. Considerations of efficiency cannot justify disregard of the constitutional mandate.

The decision of the Supreme Court is on the one hand a triumph for the rule of law. It is, on the other, a triumph for parliamentary democracy. The federal government must not view the judgment as an attack on its prerogatives and powers, but as a road map towards the strengthening of democratic institutions and an entrenchment of democratic practices in our political system.

Published in The Express Tribune, September 11^th, 2016.

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