THERE has been a debate on the constitutional legality of appointment of special assistants to the chief adviser with the rank and status of a state minister.
There are two sides of the argument: one side argues in favour of it and views no illegality in their appointments, while the other side argues that such appointment violates the provisions of the Constitution and, therefore, untenable in law.
Before I discuss both sides of the arguments, let me make a few general comments to appreciate both the sides.
Three elections since 1991 have been held under caretaker governments, and each election was claimed as free and fair, despite accusations from parties, which lost the election. Elections under caretaker governments create a congenial atmosphere for holding the parliamentary elections.
The provisions relating to the caretaker government could have been couched in language much better than the present one. They are not neat, often confusing, and, therefore, liable to various, even opposing, interpretations.
Furthermore, the tenure of such a government was seen by the framers of the amendment of the constitution to last for a three-month period, during which time a parliamentary election would be held (Article 58D (2).
The caretaker government is responsible to the president. This is a departure from the normal time, when the executive power is exercised by the prime minister and the president "shall act in accordance with the advice of the prime minister" (Article 48(3)).
The caretaker government, in terms of the Article 58D (1), " shall discharge its functions as an interim government and shall carry on the routine functions of such government…except in the case of necessity for the discharge of such functions, it shall not make any policy decision."
The powers of the chief adviser are much less than those of the prime minister. While the prime minister can exercise executive authority on his/her own, the chief adviser has to exercise his powers in accordance with the advice of the council of advisers (Article 58B (3)).
The chief adviser does not have the authority of the prime minister to recommend to the president to terminate the appointment of an adviser if the adviser does not comply with a request to resign. That is why advisers had to resign from the caretaker government, because there is no provision in the constitution for their removal (Article 58C (9)).
Arguments for the special assistants
The caretaker government shall consist of the chief adviser at its head, and not more than ten other advisers. The limitation was obviously provided in the context of a three-month duration (ninety days), by which time elections for the Parliament would be held in accordance with Article 123 (3) of the constitution.
This current caretaker government is a unique one because it came into existence at a time when the country was on the brink of a civil war. The past caretaker governments had not confronted such a situation.
The constitution does not provide any guide as to whether additional persons could be appointed to assist the caretaker government if its duration extended beyond the three-month period because elections could not be held for circumstances beyond control.
Accordingly, considering the circumstance of the prolonged tenure of the current caretaker government, appointment of special assistants is imperative to run even the routine functions of the government, and is within the powers of the chief adviser subject to the consent of the president.
It is argued that since the constitution is silent and does not prohibit such appointments, they are legal and within the ambit of the constitution as being necessary.
It is further argued that special assistants are appointed to the chief adviser and not to the caretaker government. Though it is a fine split between the two institutions, there is arguably a difference.
Although the special assistants may look after ministries of the government, they would work and act under the guidance of the chief adviser who would be accountable to the president for the action or inaction of those ministries, and not the special assistants.
It is further argued that such appointment of special assistant is intended for the purpose of lessening the onerous burden of responsibilities of the chief adviser.
Argument against the appointment of special assistants
It is argued that the appointment of special assistants contravenes the spirit of the constitution because they are appointed above secretaries of the ministries of government, but are not accountable either to the caretaker government or to the president. It is a situation comparable to jelly, neither liquid nor solid, and is untenable in law because it lacks exactitude.
It is argued that providing rank and status of state minister to special assistants is untenable under the constitution. Ministers of state are only to be appointed under Article 56 (2) of the constitution by the president on the advice of the prime minister.
It is reported that a case is pending before the High Court Division of the Supreme Court as to whether the then energy adviser of the immediate-past government could be provided the rank and status of the state minister.
It is also canvassed that state ministers are to swear an oath of office and of secrecy before performing their functions. They take the oath (a) to discharge their duties without fear or favour and (b) not to reveal or communicate classified or confidential information to any person.
Special assistants do not have to take an oath of office and of secrecy, although they are to look after ministries of the government. This means that they are not bound by the constitutional provisions of impartiality and secrecy, and such appointment is arguably unconstitutional.
There cannot be any definitive view on the legality or otherwise of the appointment of special assistants with the rank and status of state ministers. Only the Supreme Court can decide on it.
There is a view among legal experts that the president is empowered to seek an advisory opinion from the Appellate Division of the Supreme Court under Article 106 of the constitution and that opinion would rest the controversy on the legality of the appointment of special assistants.