ALL responsible states are aware that their functionaries can resort to not only unconventional but also unlawful actions to carry out their duties. So they take measures to ensure that such deviations from the law or established conventions are as few as possible, if they cannot be eliminated entirely. States that cannot realise this objective condemn themselves to suffering continual or at least periodic phases of rule without law.

That there can be situations when compliance with the rules and regulations poses risks to good governance cannot be denied. To meet such situations, provisions are made under the cover of situations of emergency. But the state of Pakistan has a bad record in this regard, as the emergency declared in the 1970s was continued for many years after its justification had disappeared — if indeed a proper justification did exist at any time. We are, however, concerned at the moment with the legitimisation of unlawful acts in normal and peaceful circumstances.

The Constitution says, vide Article 91(1), that it is the cabinet of ministers, with the prime minister as its head, that aids and advises the president in the exercise of his functions. Clause 6 of the same article says that the cabinet, together with the ministers of state, is collectively responsible to each of the two houses of parliament. Thus, the legitimate authority to govern the country is the cabinet that comprises ministers who are duly elected members of parliament. If this body includes persons who are not ministers and have not been elected as members of parliament, then it does not meet the constitutional definition of ‘cabinet’.

The government has paid no attention to the criticism of its practice of treating special assistants to the prime minister as members of the cabinet. A petition challenging the status of special assistants to the prime minister has been pending in the Supreme Court since April. Another petition on the subject was disposed of by the Islamabad High Court with the observation that the prime minister could appoint as many special assistants as he wanted, but the question of whether special assistants could be made equal to elected members of parliament or ministers holding seats in parliament was not addressed.

Whatever be the name of this system, it cannot be considered in accordance with the Constitution.

At present, the advisers to the prime ministers are also included in the cabinet but their case is slightly distinguishable from that of special assistants, as up to five advisers have been given the right to address parliament. But no such facility can be claimed for special assistants. Thus, if the government insists on treating special assistants as members of the cabinet, this body will cease to qualify as a cabinet in terms of the Constitution.

The situation needs to be rectified and litigation on a large scale avoided by limiting membership of the cabinet to ministers who are duly elected members of parliament. If the cabinet needs the advice of a special assistant or anybody else, the cabinet can especially invite him. The matter is not only one of academic interest. Many important decisions can only be taken at the cabinet level. Any decisions taken by a body that cannot qualify as a cabinet will be invalid.

Another strange practice adopted lately by the government is that it implements its opinions without completing the essential formalities required to form a decision. For instance, the government took the view that the last NFC award should be reviewed and the provinces persuaded to shed a part of their share of the divisible pool in favour of the federation that is supposed to be in need of more financial resources. In the face of stiff opposition from the provinces, the matter was dropped from public debate. But there are complaints that the provinces’ share of the divisible pool is being released subject to the cut the federation wanted but had never formalised by consensus. Whatever be the name of this system, it cannot be considered fair or in accordance with the Constitution, and by no stretch of imagination can it be described as democratic.

The instances of deviation from the hallowed principles and conventions of democratic governance mentioned here are not exhaustive, but they are sufficient to highlight the urgency of putting a brake on what can only be described as rule by whim and caprice. And this, at a time when the government is firmly in the saddle and faces no threat from outside. Indeed, it can afford to rule by democratic consensus and give the people the taste of genuine self-governance. Those of the government supporters who continually advise it to fight the shadows — and some seem to earn their living by pouring venom upon non-existent challengers — are not its assets; they are a liability and they will disperse unceremoniously the day the government faces a real political test.

At another level, we find the relatives of the prime suspect in the motorway gang rape case, Abid, who has kept the Punjab police on the run for nearly three weeks, being detained for weeks on end. Under what law are they being detained, unless the police are relying on a far-fetched idea that all of them are guilty of harbouring a proclaimed offender? In the past, the police often forced hard-to-get criminals to surrender by detaining their parents or siblings, but they usually didn’t tell their superiors so that the latter could deny knowledge of unlawful tactics. Now, such arrests and detention of a wanted man’s relatives are being done openly and are fully publicised. These actions are being justified by emphasising the heinous nature of the crime the suspected culprits are accused of. But it is conveniently forgotten that excesses by police blinked at in special situations will be repeated by investigators and prosecutors when they are persuaded by any consideration to use foul means to extract confessions from innocent persons.

The rule of law means that citizens and the state both stay within the limits of the law.

Published in Dawn, October 1st, 2020