A con­sti­tu­tional is­sue

The Pak Banker - - 4EDITORIAL -

In the midst of the on­go­ing po­lit­i­cal cri­sis over the Terms of Ref­er­ence for the pro­posed ju­di­cial com­mis­sion to probe the Panama pa­pers, an­other po­lit­i­cal event has be­clouded the na­tional land­scape. In an un­prece­dented de­vel­op­ment, PM Nawaz Sharif, the chief ex­ec­u­tive of the fed­er­a­tion, is un­der­go­ing surgery in Lon­don that will pos­si­bly keep him out of the coun­try for sev­eral weeks.

Not sur­pris­ingly, a con­sti­tu­tional de­bate has be­gun in the coun­try about who will run the gov­ern­ment's af­fairs while Nawaz Sharif un­der­goes an open heart surgery and then stays in a Lon­don hospi­tal for about two weeks to re­cu­per­ate.

Tak­ing no­tice of the brew­ing de­bate, the prime min­is­ter's of­fice has is­sued a state­ment say­ing that Nawaz Sharif has been over­see­ing the gov­ern­ment's af­fairs from Lon­don with the as­sis­tance of his prin­ci­pal sec­re­tary, mil­i­tary sec­re­tary and other staff mem­bers.

Fur­ther, he is be­ing kept abreast of the rou­tine mat­ters of the coun­try and his or­ders and de­ci­sions are be­ing con­veyed to the con­cerned quar­ters.

It may be noted here that the most im­por­tant up­com­ing con­sti­tu­tional busi­ness com­ing up next week is the fed­eral budget for fis­cal year 2016-17 which is sched­uled to be pre­sented on June 3. Before that, a meet­ing of the Na­tional Eco­nomic Coun­cil is con­sti­tu­tion­ally manda­tory at which im­por­tant de­ci­sions like fi­nal­i­sa­tion of na­tional de­vel­op­ment out­lay and macro-eco­nomic plan are to be taken. The ques­tion is: Who will ap­prove the budget and who will chair the NEC meet­ing in the ab­sence of the chief ex­ec­u­tive? Ac­cord­ing to the of­fi­cial state­ment, PM Nawaz will su­per­vise the two im­por­tant tasks through a video link from the UK.

Le­gal opin­ion in the coun­try is di­vided over the is­sue. For­mer CJP Iftikhar Chaudhry has called for the in­stal­la­tion of an in­terim prime min­is­ter un­til Nawaz Sharif re­cov­ers and re­sumes his of­fice. In his view a con­sti­tu­tional vac­uum will oc­cur if the prime min­is­ter is ill and un­der anes­the­sia.

He has sug­gested that to pro­vide le­gal cover to the pas­sage of the budget and avoid a con­sti­tu­tional and fi­nan­cial cri­sis, the PM should step down to pave the way for his suc­ces­sor to be elected as the new leader of the house. The me­dia has re­ported that the PM has del­e­gated his authority to Fi­nance Min­is­ter Ishaq Dar. But, ac­cord­ing to Jus­tice Chaudhry, Dar can­not be­come chief ex­ec­u­tive be­cause he is a sen­a­tor and the pre­mier has to be from the Na­tional As­sem­bly.

In his view there is need for an­other prime min­is­ter, as the Con­sti­tu­tion in con­se­quence of the 8th amend­ment doesn't al­low a se­nior min­is­ter to take charge of prime min­is­te­rial af­fairs. Jus­tice Chaudhry has em­pha­sized that that the elec­tion of a new PM is all the more nec­es­sary be­cause when the prime min­is­ter would be un­der­go­ing surgery, he would be anes­thetized and thus would not be in a po­si­tion to make de­ci­sions in case of a war or an emer­gency.

How­ever, other con­sti­tu­tional ex­perts dis­agree. Ac­cord­ing to them, there is no con­sti­tu­tional pro­vi­sion for bring­ing in a new prime min­is­ter dur­ing the ab­sence of the in­cum­bent. In sup­port of their stand they cite Ar­ti­cle 90( 2) of the Con­sti­tu­tion which reads: "In the per­for­mance of his func­tions un­der the Con­sti­tu­tion, the prime min­is­ter may act ei­ther di­rectly or through the fed­eral min­is­ters."

There may not be an im­me­di­ate con­sti­tu­tional cri­sis, but the sit­u­a­tion that has arisen has no prece­dent in our history. The gov­ern­ment needs to look into whether the Con­sti­tu­tion it­self or the rules of busi­ness need to be changed to in­tro­duce a for­mal tem­po­rary trans­fer of the chief ex­ec­u­tive's authority. Un­der the con­sti­tu­tion the pub­lic elects its rep­re­sen­ta­tives who choose a chief ex­ec­u­tive.

The gov­ern­ment is not pri­vate busi­ness where ad hoc ar­range­ments are made. In an elected gov­ern­ment like ours, the con­sti­tu­tion has to be fol­lowed in let­ter and spirit.

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