Deviations from legal norms

Published September 5, 2016

Finally, the government had to utilise the constitutional forum of the ‘federal cabinet’ last week to provide legal cover to a series of decisions taken by some key committees of the cabinet — on privatisation, economic coordination, energy and restructuring — since 2013, only after being directed by the apex court.

This was one of the critical governance deficiencies being pointed out by economic and legal commentators for quite a long time. Such an event was expected when the top leadership had virtually taken a hands-off approach on matters of public policy and a trusted cabinet colleague heading more than four dozen committees and a grade-21 officer controlling six dozen grade-22 officers.

Also, the third time prime minister rarely referred to constitutional and statutory forums like the cabinet and the Council of Common Interest matters of national importance and had become used to taking decisions unilaterally or within a close circle of trusted people.

Consequently, the important window of financial decision-making relating to the federating units — the National Finance Commission — turned into a non-functional entity.

In a recent judgement that set aside a decision of Prime Minister Nawaz Sharif for withdrawing exemptions on sales tax to companies, import of cellular phones and textile items, the Supreme Court of Pakistan reminded the PML-N rather curtly that the federal government was a collective entity described in the constitution as a cabinet constituting the prime minister and the federal ministers.


Key cabinet committees were not legally acceptable decision-making bodies unless their decisions were endorsed or ratified by the federal cabinet


“Neither a secretary, nor a minister and nor the prime minister are the federal government and the exercise or purported exercise of a statutory power exercisable by the federal government by any of them, is constitutionally invalid and a nullity in the eyes of the law”, the court held.

In these pages, we have been pointing out that the ECC, the CCOP, the CCOR, or the CCOE for that matter, were not legally acceptable decision making bodies unless their decisions or actions were endorsed or ratified by the collective wisdom of the federal cabinet.

The rules of business that entrust responsibilities to all federal ministries apart from those at the top positions, like the president and the prime minister, do empower the federal cabinet to constitute as many committee as it may deem necessary to deal with certain issues and areas, subject to final concurrence of the federal cabinet.

The government is preparing for a special development programme for completion in 18 months — ahead of the 2018 elections.

To be called the Prime Minister’s National Development Plan 2016-18, the new programme will engage members of the national and the provincial assemblies to come up with local schemes worth Rs30-40m, to be implemented through district coordinating officers (DCOs) and local governments.

This will be a slightly improved form of the erstwhile Social Action Programme, the People’s Works Programme, the Khushal Pakistan, Tameer-e-Watan and very recent Community Development Programme for MDGs & SDGs; but the overarching objective would remain targeting voters ahead of the next elections.

Involving around Rs40-50bn per year, the initiative is expected to be formally announced by the prime minister this month during his ongoing campaign of inaugurating signature development projects of his government.

That is what happened after then Prime Minister Shaukat Aziz announced to ‘break the begging bowl’ after saying goodbye to the IMF two quarters ahead of schedule and the premature termination of the programme by the Fund during the last PPP government.

The governments in power adopted the populist approach in development schemes: made subsidies and tariff adjustments to prepare for the next elections instead of following the fiscal discipline they were exhibiting to the IMF to secure tranche after tranche.

General Musharraf and Shaukat Aziz had also declared economic stability while breaking the begging bowl, just as Pime Minister Sharif and Finance Minister Ishaq Dar concluded their three-year ‘success story’ with ‘economic challenges are over’ last week while marketing the China Pakistan Economic Corridor once again.

This becomes more alarming when long lasting sources of international flows — remittances, foreign direct investment and exports — are under pressure and foreign debt repayment costs and imports are either increasing or moving in uncertain directions.

Already, the present government is being blamed by many for missing a historic chance to build a strong foundation of an economic powerhouse by launching wider ranging economic reforms.

Although, the government will remain under the post-programme monitoring of the IMF for utilising a many times greater share of IMF resources than Pakistan’s quota, and require regular certificates of sound economic health to ensure continuous financial flows from multilateral, bilateral and commercial lenders — including China and Saudi Arabia, there is an irresistible urge in political leaders to be extravagant ahead of upcoming elections.

Published in Dawn, Business & Finance weekly, September 5th, 2016

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