ISLAMABAD: The Supreme Court has emphasised the need for parliamentary deliberations at an appropriate stage for structuring the discretionary powers of the prime minister to prescribe qualifications for the appointment of special assistants to the premier (SAPMs).

In a detailed judgement, Justice Ijaz-ul-Ahsan said that all questions raised by the appellant in his appeal had already been dealt with and settled by the Supreme Court; besides, the appellant had failed to persuade the court to take a different view.

On Dec 18, 2020, a two-judge bench comprising Justice Gulzar Ahmed and Justice Ijaz-ul-Ahsan had rejected the appeal challenging the appointment of several SAPMs as illegal and unconstitutional for holding dual nationalities. The appeal was filed against the July 30, 2020 Islamabad High Court (IHC) judgement on a petition filed by Justice Party Pakistan chairman Munsif Awan challenging the appointment of several SAPMs.

The detailed reasons suggested that the SAPMs were not members of the cabinet as they stood on different footing compared to advisers appointed by the president on the advice of the prime minister under Article 93(1) of the Constitution and that the restrictions provided in Article 63(1)(c) of the Constitution were not applicable to the SAPMs.

PM can appoint experts for help in running affairs of state, says judgement on appeal

Justice Ahsan observed that the prime minister was the chief executive of the country and was required to perform multifarious functions and had to give directives and focus to the government and the country on a macro and policy level.

This may require deeper and specialised knowledge, understanding and experience in various areas and fields which the PM might not possess and was not required to possess, Justice Ahsan observed.

Therefore, the prime minister, who had been elected on the basis of popular mandate notwithstanding his qualifications or expertise in different areas to run the affairs of the state in an efficient, effective, systematic, methodical, well-considered and planned manner, ought to have access and a free hand to appoint those people whose ability, knowledge, experience and expertise he trusted for assistance in running the affairs of the state, Justice Ahsan said.

Rule 4(6) of the Rules of Business provided such powers to the prime minister without placing any specific restrictions to the number of special assistants that he might appoint, Justice Ahsan noted.

In addition, there was no restriction or prohibition, constitutional or otherwise, against the appointment of a person holding dual nationality, the judgement said.

The court had repeatedly acknowledged the contributions of overseas Pakistanis to nation building which could not be ignored or questioned on the basis of frivolous and baseless assumptions and hypothesis which had no constitutional, legal or factual basis and were aimed to advance personal or political agendas, it added.

“We therefore hold that a person having dual nationality is neither ineligible nor barred from appointment as SAPM,” the judgement held in clear terms.

Even otherwise, admittedly such appointments fell within the domain of discretionary powers available to the prime minister under the Constitution and the law, unless abuse, excessive exercise, mala fides or blatant arbitrariness was clearly demonstrated, the judgement noted. Thus casual, routine and frequent judicial interference in the matter would be violative of the concept of trichotomy of powers enshrined in the Constitution, the judgement emphasised.

This would needlessly interfere with, hamper and obstruct the prime minister in the effective and efficient discharge and performance of his constitutional functions and obligations.

Therefore, judicial restraint in such matters should be the norm and interference only an exception and that too in exceptional and rare cases, the judgement emphasised.

Published in Dawn, March 5th, 2021