If 2022 was a challenging year for the Constitution of Pakistan, then 2023 promises to be just as chaotic, if its initial days are anything to go by. Punjab and Khyber Pakhtunkhwa witnessed their respective Provincial Assemblies being dissolved and within Punjab, a contentious Caretaker Government was appointed at the helm of the Province. If there was any doubt about the controversial nature of said caretaker government then it was removed when Mr. Naqvi, immediately post his official appointment made several changes to the bureaucracy of the Province which included sensitive positions like the CCPO Lahore, RPO of Sheikhupura, Faisalabad, Sargodha, Rawalpindi, Bahawalpur, Sahiwal, Dera Ghazi Khan, Anti-Corruption Establishment Chief, over 97 law officers along with the Advocate General of Punjab and 117 political advisors.
Such a massive shakeup within the Punjab bureaucracy in a manner of few days has raised several eyebrows within the legal community as well as the populace of Pakistan since the actions of the caretaker government are similar to an elected government immediately taking charge of the office rather than the caretaker looking after the office till the newly elected Government takes office.
The notification for such removals and appointments highlights that the caretaker government is empowered to make such changes under Article 224-1A of the Constitution and Article 230 of the Elections Act 2017.
Regrettably, the caretaker government is wrong on both occasions. Article 224, clause 1 sub-clause A makes no mention of such vast powers and simply empowers said caretaker government to appoint a cabinet. The said caretaker government is granted no other constitutional power. When we peruse Article 230 of the Elections Act 2017, these appointments become even more perplexing because clause 2 of said Article clearly forbids the caretaker government from making such appointments i.e:
(2) The caretaker Government shall not-
e) make promotions or major appointments of public officials but may make acting or short-term appointments in the public interest;
f) transfer public officials unless it is considered expedient and after approval of the Commission;
The incumbent federal and the caretaker governments have defended these appointments by stating that these changes were necessary to ensure an impartial election as PTI influenced appointments could not ensure a neutral platform for all parties. It is quite a sorry excuse to justify such a grave violation of the Constitution, and a clear example of the caretaker government acting beyond its constitutional mandate at the behest of vested interests. The aforementioned cannot be interpreted in any manner save for a situation where an appointment has to be made to ensure that the day-to-day working of the caretaker government is not impeded and this is to be done solely where the manpower required for said work does not exist and appointments have to be made in an emergency state. Apart from such urgencies, the caretaker government cannot take any action whatsoever.
The Supreme Court of Pakistan as well as the High Courts of Pakistan have interpreted the powers of the caretaker government in an extremely conservative and strict manner. The Supreme Court most recently adjudicated upon such a matter under the guidance of Chief Justice Gulzar Ahmed in 2021 PLC C.S 519 and held that the mandate of the caretaker government was to strictly carry out day-to-day affairs with the help of the resources available, and that it cannot make any policy decisions, appointments, transfers or recruitments.
The magnitude of the violation increases exponentially when said actions are done in an arbitrary manner absent any coherence or reasoning. The judgments resonated and solidified previous such decisions by the Supreme Court in 2016 SCMR 1299 & 2013 SCMR 1205.
The High Courts of Pakistan have acted no differently wherein the Peshawar High Court not only highlighted the aforementioned judgments in its landmark decision in 2022 PLC C.S 778 but interpreted Article 230 of the Elections Act 2017 to be constrained in its interpretation and when faced with the argument that such appointments are necessary and required to ensure a neutral avenue for a ‘free and fair’ election, the Honorable High Court examined Article 230 and determined that the primary function of the caretaker government is to attend day-to-day matters to run the affairs of the government.
The Court held that the caretaker government enjoys limited powers of administrative continuity within available resources and any emergency or short-term appointment is to effectively manage short-term staffing and is to be made only to temporarily fill vacancies, where a department has a severe emergency and such vacancies wouldn’t be filled immediately in a proscribed manner. Even the above can only be done in matters that concern the caretaker government and not where the work of the caretaker setup has little relevance. Similar findings and interpretations were made by the Sindh High Court in 2014 PLC C.S 304.
With the perusal of the aforementioned, it is clear that the mandate of law places extreme limitations on the working of the caretaker government yet the incumbent caretaker has acted in a manner that is not only against the provisions of the Election Act 2017 and the Constitution, but also of such blatant vulgarity that one can only be horrified at what is at the display.
While it is true that the Supreme Court should not interfere in the domain of the executive arbitrarily, but where the executive acts in such a manner, then interference is not only a matter of legal debate but of constitutional necessity and every legal mind within the country must condemn and stand against such illegalities and violations.
There can be no argument that the rule of law is fraying in Pakistan. All the political parties are abusing selective interpretations of the Constitution of Pakistan and the laws that govern the state for their own short-sighted gains without realizing that brick by brick, the very legal foundation of this country is being dismantled. Eventually, this entire structure will collapse. Perhaps it is fated that we will only learn our lesson when disaster befalls us, and we stand upon the pile of rubble, only then to understand the importance of what is so easily dismissed as a piece of paper.