The Constitution of Pakistan, 1973 Developed by Zain Sheikh

MUHAMMAD NAWAZ SHARIF

V/S

PRESIDENT OF PAKISTAN AND OTHERS

Per Shafiur Rheman, J

(a) Constitution of Pakistan (1973), Articles 92(3) & 64

Resignations submitted by the Ministers from the Cabinet fall in a category quite different from those of the members of the National Assembly. If they were addressed to the President and were presented directly to the President and were given effect to by the President, then it is indeed in full compliance of Article 92(3) of the Constitution. There is an extensive article on “Collective Ministerial Responsibility and Collective Solidarity” by David L. Ellis, published in Public Law (1980) appearing at pages 367 to 396. (p. 623)DD

(b) Constitution of Pakistan (1973), Articles 92

“for all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has not right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues……………It is only the principle that absolute responsibility of Ministers to Parliament can be upheld and one of the most essential principles of Parliamentary responsibility established.” (EE) (623

“It might be argued that unanimity creates the impression that Minister are working together which promotes greater electoral and party confidence, as well as enhancing the Government image in the eyes of foreign politicians, investors and others.” (FF) 623

(c) Constitution of Pakistan (1973), Article 94

“No Prime Minister has enjoyed his tenure of office without criticism from his own parliamentary party from time to time; some have faced revolts within their own party on particular issues; a few have, in effect been forced from office by their own party.” (p. 623) GG

The Prime Minister’s Heavy Load.-It goes without saying that the Prime Minister is hard-worked and always pressed for time. He must scan multitude of papers, carry on or supervise heavy correspondence, receive persons seeking interviews on maters of public or private concern, hold Cabinet meeting, confer with individual ministers visit and submit reports to the sovereign, and – as if that were not enough – spend much of almost every day when Parliament is in session either on the Treasury Bench or in his private room behind the speaker’s chair, holding himself in constant reading to answer questions, to decide points of tactical procedure put up   to him  by his lieutenants, and to plunge into debate in defence of some Government proposal or policy. As leader of his party, too, he must devote steady attention to its affairs. All in all, it is small wonder that the shoulders of many a Prime Minister have drooped under the burden.” (p. 624) HH

“for, within Ministry and Cabinet alike, the Prime Minister is the Key, man even if not always the outstanding personality. He has put the other ministers where they are. He exercise a general watchfulness and coordinating influence over their activities. He presides at Cabinet meetings, and counsels as time permits with individual members, encouraging, admonishing, advising, and instructing. He irons out difficulties arising between ministers or departments. If necessary, he can require of his colleagues that they accept his, views, with the alternative of his resignation or theirs, for it is strategically essential that the Cabinet, however, divided in its opinions behind closed doors, present a solid front to Parliament and the world. Indeed, he can, and as we have seen occasionally does, request and secure from the sovereign the removal of a minister for insubordination or indiscretion. He is expected to be the leader of the ministerial group; as its chief spokesman, he will have to bear the brunt of attacks made upon it; and it is logical that his authority shall be disciplinary as well as merely moral. It goes without saying however, that in all this he must not be overbearing, or harsh, or unfair, or tactless. His government will at best have enough obstacles to  overcome; its solidarity must not be jeopardized or its moral impaired by grudges or injure feelings within its ranks.” (p. 624) II

“For Ramsay Muir the Prime Minister was a ‘potentate who appoints and can dismiss his colleagues. He is, in fact, though not in law, the working head of the State, endued with such a plenitude of power as no other constitutional ruler in the world possesses, not even the President of the United States.” But, in Muir’s view, the Prime Minister holds this power ‘so long as he controls a majority in the House of Commons’ and ‘it is necessary that he should carry his colleagues in the Cabinet, or a large majority of them, alongwith him … … .. … … … … …One of the difficulties in discussing ‘prime ministerial government’ is to know exactly what the notion entails, for it appears to mean different things to different people. It seems however, to include the following proposition. 1. A Prime Minister has the effective power to give office only to those of whom he personally approves, and his minister have been ‘reduced to the rank of lieutenants that he can dismiss as he wishes’. 2. Control of the machinery of Government ensures the Prime Minister’s preponderant influence over his colleagues. Through his ‘control’ of the Cabinet agenda.  3. More generally (and most basic to a meaningful definition of Prime Ministerial Government), major policy decisions are taken or dominated by the Prime Minister.  He dominates Cabinet deliberations to such an extent that he can rarely, if ever, be defeated in Cabinet. Formal meeting apart, he may also intervene at will to dominate the policies of any department he chooses to take an interest in. 4. Thee points constitute a great increase in the Prime Minister’s power within the Government, and are developments that date from the First World War (or, as some believe, from the Second). (p. 625, 626) JJ

A Minister who disagrees with a Cabinet decision on a policy matter, and is not prepared to support and defend it, should no longer remain in the Council of Ministers and should better resign. There have been a number of resignations in the past because of difference with the Cabinet. Dr. Mathai resigned as a Finance Minister because he disagreed with the Cabinet on the question of scope and powers of the Planing Commission which was proposed to be set up then. C.D. Deshmukh resigned because he differed from the Cabinet on the issue of re-organisation of States, especially on the question of Bombay. On September 5, 1967, Foreign Minister Chagla resigned because of his differences with the Government’s language policy, especially the place of English. Several other Ministers have resigned from the Central Council of Minister owing to their differences with the Cabinet.

The principle of collective responsibility does not mean that every Minister must take an active part in the formulation of policy, or that he should be present in the committee room whenever a policy decision is taken. This is not possible because of the large size of the present day Council of Minister and, therefore, the obligations of a Minister may be passive rather than active when the decision does not relate to matters falling within his own sphere of responsibility ensure that the Council of Ministers presents a united front to Parliament. In the words of Laski, “Cabinet is by nature a unity: and collective responsibility is the method by which this unity is secured. The principle of collective responsibility is both salutary and necessary. On no other condition can Council of Ministers work as a team and carry on the Government of the country. It is the Prime Minister who enforces collective responsibility amongst the Ministers through his ultimate power to dismiss a Minister.” (p. 625, 626) KK

(d) Constitution of Pakistan (1973), Articles 58(2)(b) & 92(3)
Article 92(3) read with Article 58(2)(b)

Resignations from the Cabinet are not at all sure indication of lack of confidence in the Government nor do they affect or impair the smooth functioning of parliamentary democracy. In a book “Cabinet Government in India” by R.J. Venkateswaran, the following observations have been made with regard to resignations by the Minister in Chapter in Chapter VI under the heading “Remarkable Resignation”:- (p. 626) LL

The resignations of the Ministers should not have found place at all in the dissolution order, nor could 0they have been taken into consideration or formed ground for taking action under Article 58(2)(b) of the Constitution. They are wholly irrelevant. (p. 626) MM

Per Nasim Hasan Shah, C J

(e) Constitution of Pakistan (1973), Articles 101 – read with Articles 58(2)(b), 46, 48(1)(6),91(4)(5), 242(1A), 243(2)(c) & 213

Coming back to the question of the role assigned to the President and the power vested in him after the adoption of the Constitution (English Amendment) Act, 1985, reference to the power to dissolve the National Assembly conferred on him by clause (2) of Article 58, which power was not earlier vested in him, has already been made. In addition he was empowered also to appoint, in his discretion, the Chief Election Commissioner (Article 213), the Chairman of the Public service Commission [Article 243(2)©]. He was also empowered to appoint the Governors of the Province after consulting the Prime Minister [Article 101]. Powers were also conferred on him to refer any matter of national importance to a referendum [Article 48(6)]. Duty was cast on the Prime Minister vide the substituted Article 46 to keep the President fully cognisant of the doings of his Government. (p. 565) V