PM’s adviser cannot exercise executive powers: IHC

Court disposes of petition challenging appointment of Mirza Shahzad Akbar

ISLAMABAD:

The Islamabad High Court (IHC) has disposed of a petition challenging appointment of Shahzad Akbar as adviser to the prime minister on accountability, noting that the petitioner did not present any material to prove that Akbar breached provisions of the Constitution or the Rules of 1973.

The petitioner, Syed Pervaiz Zahoor, had claimed that PM Imran Khan on July 22 appointed Akbar to the key position of the adviser –equivalent in status to a federal minister – in an “arbitrary and whimsical manner”. He had also challenging his appointment as head of the Assets Recovery Unit (ARU).

The petitioner had asserted that Akbar is illegally exercising executive powers and through abuse of his authority is influencing the National Accountability Bureau (NAB) and other investigating agencies.

In its 9-page order, issued on Wednesday, the IHC noted that the petitioner was neither harmed by the alleged exercise of executive authority by Akbar nor that his fundamental rights were violated.

“There is no material attached with the petition in support of this assertion except that reliance has been placed on judgment, dated 17.08.2020, passed by the Sindh High Court (SHC) wherein adverse observations were recorded regarding the conduct and role of respondent 3 [of Shahzad Akbar].”

“The petitioner has [also] not placed on record any material in order to ascertain whether, as an adviser, respondent 3 [Shahzad Akabar] may have breached the provisions of the Constitution or the Rules of 1973,” the verdict added.

The judgment, authored by IHC Chief Justice Athar Minallah, however, further elaborated the role of an adviser, who, according to the verdict, is not a part of the federal cabinet and cannot attend the cabinet meeting unless summoned by the prime minister through a special invitation.

It noted that appointing an adviser with the status of a minister does not empower him to act or function as a minister or to perform functions under the Rules of 1973. ‘

“The Rules of 1973 explicitly declare the secretary to be the official head of the division/ministry and responsible for its efficient administration, discipline and proper conduct of business.”

It said for the purposes of the executive business, the secretary and officials subordinate to the latter have a pivotal and exclusive role. The policy is, however, formulated and decisions in this regard fall exclusively within the domain of the prime minister and the minister holding the portfolio.

“The distinction between policy matters and its implementation has been clearly defined. An adviser has no role either in policy matters of a division or ministry nor its execution and running the business of the federal government in terms of the Rules of 1973,” it added.

The order said the relevant provisions of the Constitution and the Rules of 1973 are unambiguous regarding the status and role of an adviser in the context of the business of the executive.

“An adviser is not a member of the federal cabinet nor entitled to attend its meetings except when required to do so by the prime minister and, that too, pursuant to a special invitation.

“An adviser can speak and attend the proceedings of the parliament but cannot vote. The business of the executive authority and the manner in which it is to be exercised is governed under the Rules of 1973, which does not contemplate the role of an adviser.”

It said an adviser cannot interfere or in any manner influence the executive authority, working or functioning of a division/ministry nor its policy matters.

“This scheme is obviously based on the foundational principle of the Constitution that the 'State shall exercise its powers and authority through the chosen representatives of the people'.  

“Suffice it to mention, any act of respondent 3 [Akbar] in breach of the Constitutional provisions and the Rules of 1973 will be void, without lawful authority and jurisdiction,” it added.

The judgment said an adviser also does not have any power to directly or indirectly, instruct, dictate or in any other manner interfere with the powers conferred in NAB under the Ordinance of 1999.

“Likewise, the Federal Investigation Agency (FIA) has been established under the FIA Act 1974. The latter statute also does not empower an adviser to interfere in its matters, whether directly or indirectly. Any interference in breach of the Act of 1973 will definitely be void and an abuse of the Adviser’s office."