petition

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction)

CP NO. _________ Of 2020.

1. Mr Muhammad Arshad Khan Advocate , Member Islamabad High Bar Association , Islamabad.

2. Mr Ghulam Dastgeer Butt Advocate, Member, Rawalpindi Bar Association, Rawalpindi.

Petitioners VERSUS

1) Federation of Pakistan through Secretary to Islamabad.

President of Pakistan,

2) Federation of Pakistan through Principal Secretary to Prime Minister of Pakistan, Islamabad.

3) Federation of Pakistan through Secretary Establishment , Islamabad.

4) Federation of Pakistan through Secretary Cabinet, Islamabad.

5) Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad.

6) Malik Amin Aslam Khan, Adviser on climate change, with the status of Federal Minister.

7) Mr Abdul Razak Dawood, Adviser on Commerce and Investment with the status of Federal Minister.

8) Dr. Ishrat Hussain, Adviser on Institutional reforms and austerity with the Status of Federal Minister.

9) Dr. Abdul Hafeez Sheikh Adviser on Finance and Revenue with the Status of Federal Minister.

10) Mr. Zaheer –ud –Din Baber Awan, Adviser on Parliamentary Affairs with the status of Federal Minister.

11) Dr. Sania Nishtar SAPM on Social Protection and Poverty with the Status of Federal Minister.

12) Mr. Muhammad Shahzad Arbab SAPM on Establishment with the Status of Federal Minister.

13) Mr. Mirza Shahzad Akbar SAPM on accountability and interior with the Status of Minister of State.

14) Mr. Syed Zulfiqar Abbas Bukhari, SAPM on Overseas Pakistan and Human Resource Development with the Stats of Minister of State.

15) Mr.Shahzad Syed Qasim, SAPM on co-ordanation of Marketing and Development of Mineral Resource with the Status of Minister of State.

16)

Mr. Ali Nawaz Awan SAMP On CDA.

17)

Mr. Muhammad Usman Dar, SAMP on Youth Affairs.

18)

Mr. Nadeem Afzal Gondal SAPM on Parliamentary Coordination.

19)

Mr. Sardar Yar Muhammad Rind SAPM on Power and Petroleum.

20) Dr. Zafar Mirza, SAPM on National Health Service Regulation and Coordination with the status of Minister of State.

21) Dr. Firdous Ashiq Awan, SAPM on Information and Broadcasting with the Status of Minister of State.

22) Mr. Nadeem Babar, SAMP On Petroleum with the Status of Minister of State.

23) Dr. Moeed w. Yousaf, SAPM on National Security and Strategic Policy Planning with the Status of Minister of State.

24)

Ms Tania S. Airdus SAPM on Digital Pakistan.

….RESPONDENTS CONSTITUTIONAL PETITION UNDER ARTICLE 184 (3) OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN. Respectfully Sheweth.

That the petitioners are

member of

Islamabad High Court Bar Association,

Rawalpindi Bar Association and are invoking the inherent constitutional powers and jurisdiction under Article 184(3)of the Constitution of the Islamic Republic of Pakistan being their general responsibility toward society and in general Public Interest for interpretation of the constitutional provision of Islamic Republic of Pakistan Constitution 1973 and Rules of Business 1973 regarding the governance and appointment of the Advisors and Special Assistants to the Prime Minister of Pakistan.

That the facts of the case are as Under:1. The idea of the representative democracy, defined by Abraham Lincoln ,as government of the people, by the people, for the people”, runs throughout the constitutional fabric of Pakistan. The writers of

the Constitution lay down in its preamble: “The state shall exercise its powers and authority through the chosen representatives of the people.�

2. That as per the constitutional mandate the person who wields majority votes of public representatives elected to National Assembly from their respective constituencies become the Prime Minister of Pakistan.

His

functions and duties are defined in the Constitution for good governance of State and welfare of people. Whereas Leader of Opposition enjoys confidence of sizeable number of Member having different agenda other than the party in power. However, it is disturbing that when in power or out of power, some members of the legislature and unelected people made reckless expressions about Judiciary merely because certain judgments otherwise lawfully passed did not suit their temperament. Press clipping of such statements are also separately remained subject-matter of contempt proceedings before this court and some of the elected person and even Prime Minister of Pakistan was penalized by this August Court.

Persons attaining heights are expected to adopt culture of tolerance, more than any other citizen. When people at large place destiny of nation before chosen representative through recognized process of election,

then

whether exercising powers as Leader of the House or functioning as Leader of Opposition they occupy higher pedestal and become obligated for ensuring respect to each organ of the State. It is noteworthy, that by virtue of oath prescribed under Article 65 of the Constitution, every Member of Parliament undertake to perform functions honestly, to the best of ability, faithfully, in accordance with the Constitution and Rules of the Assembly and always for the sovereignty, integrity, solidarity, wellbeing and prosperity of Pakistan. Members also hold themselves responsible for preserving the Islamic Ideology, besides protecting and defending the Constitution.

3. That similarly the Prime Minister under Article 91 (5) while taking oath of office; obliges himself to the conditions specified therein, including wellbeing of the people, preservation of Islamic Ideology and Constitution and unambiguously assuring to protect and defend the same. If at all, facts establish that any such person had factually made certain appointment to the constitutional office and these appointee are holding office and exercising such powers which are against the constitutional provision and law of the land then obviously such act of the PM would be

highly

discouraging and disappointing.

4. That it is recognized that Judiciary enjoys ultimate authority of judicial review, when Parliament or the Executive at any stage endeavors to transgress its limits by infringing upon the jurisdiction of other and thereby affecting the ground norms, the basic structure or broad feature of Objectives Resolution. Subject, however, to above aspects it is true that Prime Minister as Chief Executive is obliged by various provisions of Constitution to address the nation or the Parliament for apprising them important national issues which may have possibility of any adverse effect on the smooth governance of the State. But in so doing he does not enjoy a licence for damaging or violating integrity of its constituent organs and violate any provision of the constitution and his oath.

5. That much ink has been spilled by proponents and opponents of a presidential form of government. The debate over its merits and demerits is raging. As things stand, the president of Pakistan is a ceremonial head of state and representative of the unity of the republic, as per Article 41(1) of the Constitution.

6. That the prime minister is at the helm of affairs of the federal government.

He exercises the executive authority in the name of the president. In theory, the president is the wellspring of power. Practically speaking, he is a symbolic figure and cannot act on his own.

7. That to state the obvious, the Constitution is hybrid, drawing heavily both on the British parliamentary and the American presidential form of government.

8. That the status, powers and rights of a federal minister or a minister of state cannot be conferred upon unelected advisers and special assistants to the prime minister, nor can they sit in or participate in cabinet meetings conducted by the prime minister 9. That as soon as the PTI took the reins of government following the 2018 election, Imran Khan appointed federal Ministers (25) State Minister (4) Advisers (5) and Special Assistants (14) and the appointment and reshuffling is going on till the filing of this CP , the list as per Cabinet Division is attached, Curiously, the Advisors Special Assistant to PM (SAPMs) were accorded either the powers and status of a Federal Minister and Minister of State (junior minister) giving rise to a key question whether we are hurtling towards a presidential form of government or not.

As it is, there are five advisers with the powers and status of federal ministers . As for the special assistants, there are 14 of them; seven have been given the powers of ministers of state and two the status of a Federal Minister.

10. That it goes without saying that the advisers and special assistants are neither members of parliament, nor are they part of the federal cabinet according to the current constitutional scheme. The question thus arises whether they can be accorded the status and powers of ministers or ministers of state under the Constitution. This requires an overview of the Constitution, the relevant Rules of Business, and the case law in this regard.

11. That the federal cabinet consists of ministers with the prime minister at its head. That Articles 90 and 91 are about the federal government and cabinet, but do not include advisers and special assistants is of immense significance. Article 92 states categorically that federal ministers and ministers of state shall be appointed from amongst the members of parliament. However, with the incorporation of Clause 9 to Article 91 and insertion of specific words ‘subject to Clauses 9 and 10 of Article 91’ in Article 92 by way of the 18th Amendment (2010), its stringent consequences have been effectively blunted and watered down.

12. That before entering upon office, a federal minister must take the oath provided in the third Schedule to the Constitution.

13. That article 93 deals with the appointment of advisers to the prime minister. The original constitution did not contemplate these appointments. The Sindh High Court, Mr Justice SA Rabbani, traces the origin of adviser(s) to the prime minister and chief minister in a seminal, landmark case reported as Ahmad Yousaf Ali Rizvi and others vs Munawar Ali Butt and others (PLD 2000 Karachi 333).

14. That article 93(1) speaks of two things in relation to the appointment of advisers: firstly, empowering the prime minister to appoint adviser(s) and secondly, preventing him from appointing more than a certain number.

When it comes to the appointment of advisers, on the face of it, the president enjoys absolute and unfettered power; he can appoint any person, irrespective of whether he is a member of parliament or not.

However, this power is to be exercised according to the constitutional scheme, not brazenly and arbitrarily. Seemingly, the underlying intention of this provision is to accommodate highly educated and qualified people working in various walks of life who could not be elected to parliament or do not want to indulge in electoral politics. However, party loyalists are now joining the government under this provision, thereby defeating its real purpose. As for the restriction envisaged by the constitutional provision, it limits the PM’s power to appoint advisers in respect of numbers.

In other words, the maximum number of advisers a PM may appoint at a time is five. Any appointment beyond that limit would be unconstitutional.

15. That article 93 confers the same right upon advisers as envisaged by Article 57; they enjoy the right to speak and participate in the proceedings of either House, or a joint committee or any committee thereof as a member.

16. That appointment of the special assistants to the prime minister is alien to the constitution of Islamic Republic of Pakistan 1973 although the Constitution in its interpretation clause, Article 260, does make an oblique reference to special assistants, it is silent on their appointment. To supply this omission, Rule 4(6) of the Rules of Business, 1973 comes in aid of the prime minister, but rules cannot override the constitutional provision.

17. That having discussed ministers, advisers and special assistants, advisers and special assistants may be contrasted with ministers. The first line of demarcation is that unlike ministers, advisers and special assistants are not part of the federal government. This being the case, they cannot be vested with any ‘executive authority’: a delegate cannot further delegate.

The second big difference is that they don’t take the constitutional oath.

Thirdly, they are not collectively responsible to Parliament in terms of Article 91(6).

18. That all the above stark differences have been thrown into bold relief in a recent judgment of the Sindh High Court reported as Fareed Ahmad A Dayo vs Chief Minister Sindh through Principal Secretary and five others (PLD 2017 Sindh 214) (DB).

19. That in a nutshell, the status, powers and rights of a federal minister or a minister of state cannot be conferred upon unelected advisers and special assistants to the prime minister, nor can they sit in or participate in cabinet meetings conducted by the prime minister. One wonders if Prime Minister Imran Khan is honouring the Constitution more in the breach than in the observance by granting the status of federal ministers to his advisers and that of ministers of state to his special assistants. During his election campaign, he used to promise to hold aloft the banner of the rule of law when he would come into the power. Lamentable as it is, post-election, he is falling foul of the law of the land.

20. That the respondents No 6 to 24 (except 16) are not the chosen representative of the People and they are enjoy the executive authority, which is against the mandate given to the Prime Minister of Pakistan and which is in violation of the scheme of the Constitution which requires the exercise of authority through chosen representatives of the people of Pakistan.

21. That although the article 93 of the Constitution give power to the Prime Minister for the appointment of five advisers , but such power in the absence of any criteria provided for is to be exercised justly and fairly and not to accommodate the

personal loyalist and giving status of a Federal Minister and to hold important portfolio.

22. That the appointment made directly or indirectly to exercise the power and control the government department are against the basic and fundamental rights to be dealt in accordance with law and the rule 4(6) of rules of business 1973 are inconsistent with the constitutional guarantee in form of fundamental rights of its citizen.

23. That the Prime Minister is neither a King nor a Monarch , but is in the domain of trust and under Article 5 of the constitution , he is obliged to obey the Constitution and Law like any other ordinary citizen, and while exercising his executive authority , his discretion is neither brazen nor arbitrary but subject to constitution, since he has taken the oath to discharge his duties and perform function solely in accordance with the Constitution of Pakistan.

24. That the action of the respondents are against

the

constitution of Islamic Republic of Pakistan 1973, and laws and judgements of the apex court of this country , inter alia on the following grounds:

The following points of law have arisen in instant petition for consideration by this Apex Court:-

LAW POINTS A. Whether the Advisors and Special Assistant to the Prime Minister can be appointed by the President of Pakistan on the Advise of Prime Minster with the status of Federal Minister and Minister of State?

B. Whether the Constitution of Islamic Republic of Pakistan allow the PM to make such appointment ?

C. Whether the executive powers can be exercised by such appointee?

D. Whether these advisors and SAPM can exercised the power of an elected person ?

E. Whether these Advisors and SAPM can sit in the Cabinet Meeting?

F. Whether these advisors and SAPM can be answerable to the People of Pakistan?

G. Whether these Advisors and SAPM can head any Division of the Federal Govt and enjoy executive power of a Federal or State Minister?

H. Whether these Advisors and SAPM are entitled to perks and Privileges as other members of the Cabinet enjoy?

I. Whether these Advisors and SAPM can be come the Members of the Committee of the Cabinet and make important decision regarding the policies of the government?

J. Whether these Advisors and SAPM are accountable , to be the privy of Federal Cabinet, as they did not take oath as per the Constitution?

K. Whether an overview of the Constitution, the relevant Rules of Business, and the case law in this regard is not required to be judicially reviewed ?

L. Whether the executive authority exercised by the Advisers and SAPMs is not violative of the fundamental principles of the democracy ?

M. Whether executive action by the advisers and SAPMs would seem to show as if democracy is at war with itself since it would be an attempt to place non elected person of their choice at the helm of affairs to discharge the executive authority , which the constitution solely reposes on the shoulder of the elected representatives ?

N.

Whether the on daily basis the order passed by these Advisors and SAPM while heading different government departments are in according to law and as per constitutional mandate under Article

90 of the Constitution of Islamic Republic of Pakistan, 1973?

O.

Whether the rule 4(6) of Rules of Business of 1973 are not in conflict with the Constitutional provision of Article 90,91,92 and 93 of the Constitution of Islamic Republic of Pakistan 1973?

P.

Whether this Rule 4(6) of rules of business 1973 is Ultar Vires the Constitution?

That the action of the respondents are against the constitution of Islamic Republic of Pakistan 1973, and laws and judgements of the apex court of this country , inter alia on the following grounds:

GROUNDS a.

That the Islamic Republic Of Pakistan constituted under Article 1 of the Constitution is also required to be governed and its affairs of the state to be run accordance with the provision of the Constitution of Islamic Republic of Pakistan and the law etc made there under for the said purpose.

b.

That the office of the Prime Minister being the Chief Executive of the Federal Government as Provided in

Article 90; the Cabinet Under Article 91 consisting of PM as its head and the Federal Minister and Minsters of State under Article 92 helped by the advisers under Article 93 having the Advice of Attorney General Under Article 100 of the Constitution of Islamic Republic of Pakistan for the exercise of the Executive Authority of the Federation under the Rules of Business 1973, made under Article 99 thereof and any other post or office or office unless provided under the Constitution or law etc is illegal , void ab initio, ultra vires the Constitution and corm non judice. Hence conferring the status of Federal Minister and Minister of State on Advisers and SAPMs and giving them executive authority is un constitutional , illegal viod and ultra vires the Constitution and liable to be set aside in the interest of justice and democracy.

c.

That the appointment of the respondents No 6-24 are not according to law and as per constitutional mandate under Article 90-94 of the Constitution of Islamic Republic of Pakistan, 1973.

d.

That this Honourable court through number of Judgments has laid down the para meter and criteria that how a discretion in appointment to public office will be used , as 2010 SCMR 1301, SMC No 24 of 2010, PLD 2012 SC 132.

e.

That this Honourable Court has also expounded principles regarding the making appointments for the posts of Public offices and all such principles have been violated by the Respondents No 1-5 for making the appointment of respondents No 6-24.

f.

That the act of the respondents No 1-5 are against the constitutional rights guaranteed to the petitioners and Public at large.

g.

That the petitioners will submit further grounds at the time of the hearing of the petition , if necessary or deem fit relying upon the relevant judgements of the Honourable court on the said issue.

h.

That the matters relates to question of P:ublic Importance

with

inference

to

enforcement

of

fundamental rights conferred by Chapter I of Part II and no other efficacious , adequate remedy is available to the petitioners except to invoke the jurisdiction of this Honourable court under Article 184(3) of the Constitution of Islamic Republic of Pakistan.

PRAYER

:In view of the above submission , facts and

circumstance of the case It is therefore, very humbly prayed that following relief may be granted in the interest of justice:

1) That the appointment of the respondents No 6-24 are against the Constitution and law of the land.

2) That Rule 4(6) of the rules of Business 1973 is ultra vires the Constitution and law.

3) That the respondents No 1-5 have no authority to appoint any unelected person as advisers and SAPMs with the status of Federal Minister and Minister of State.

4) That to declare that the exercise of any executive authority by respondents No 6-24 is against the law and constitution of Islamic Republic of Pakistan.

5) That to declare that the respondents No 6-24 are not entitled for any financial benefit including their Salaries , allowances , perks and Privileges having the status of Federal Minster and Minster of State being advisers and SAPMs. 6) That the Respondents No 6-24

may kindly be directed to

surrender all the salaries and other perks and privileges obtained from the date of assuming of office till their removal.

7) Any other relief may deem fit may also be granted in the circumstances of the case.

Drawn by (Jehangir Khan Jadoon ) Advocate Supreme Court of Pakistan Islamabad Cell No.0333-5209511

filed by (Ahmed Nawaz Chaudhary) Advocate on Record

Dated:- 04.2020.

CERTIFICATE Certified that, as per instruction, this is the first constitutional petition under Article 184(3) of the constitution, filed before this Hon’able Court.

The petitioners have not filed any writ petition under Article 199 of the constitution regarding the above matter in a high court of Pakistan..

Advocate on Record