Centre wins case: 5 regulators placed under ministries’ control

IHC division bench suspends single bench's orders

ISLAMABAD: The federal government has won the case of placing five regulatory authorities under the control of relevant ministries in the Islamabad High Court (IHC).

The victory came on Tuesday when the IHC ‘suspended’ a single bench's orders to set aside the government’s decision.

A division bench, comprising Justice Shaukat Aziz Siddiqui and Justice Mohsin Akhtar Kayani, suspended Justice Athar Minallah's orders passed on June 20 and March 27, while hearing an intra-court appeal of the federation.



The court also issued notices to respondents - Muhammad Nawaz, a worker of the Pakistan Justice and Democratic Party and All Pakistan CNG Association Central Chairman Ghias Abdullah.

The Cabinet Division secretary, through Additional Attorney General (AAG) for Pakistan, Muhammad Waqar Rana, had challenged the decisions saying that the "impugned judgment betrayed logic, reason, law and the mandate of the Constitution."

Justice Minallah of the IHC had annulled the impugned notification of the government placing Oil and Gas Regulatory Authority, National Electric Power Regulatory Authority, Pakistan Telecommunication Authority, the Frequency Allocation Board and Public Procurement Regulatory Authority under the relevant ministries.



The order said that the federal government shall be at liberty to place the matter before the Council of Common Interests (CCI) for its decision pursuant to powers conferred under Article 154 of the Constitution.

The notification was issued by the Pakistan Muslim League-Nawaz government on Dec 19, 2016. Despite Justice Minallah's order, the government had again issued a notification and placed the regulators under the control of ministries.

Subsequently, petitioner Nawaz approached the IHC against the government’s decision, urging the court to declare the move unlawful.

Consequently, Justice Minallah suspended the notification issued in June and summoned the PM’s Principal Secretary Fawad Hasan Fawad and Cabinet Division Joint Secretary Dr Iram Khan “to explain as to why proceedings may not be initiated against them under the Contempt of Court Ordinance 2003” for allegedly violating court's order.

In its order, Justice Minallah had “unequivocally held that neither the federation of Pakistan nor the prime minister is vested with jurisdiction or power to interfere with or alter, change or amend Entry 53 of Clause II of schedule-II of the Rules of Business, 1973”.

“Despite the judgment of this court, the federal government issued [the] memorandum,” the order read, adding that the memorandum appears to be willfully flouting and disregarding the court’s previous judgment.

In the petition, the AAG said that the prime minister transferred the “administrative control” of the bodies for smooth and better transaction of business of the federal government.

AAG Rana said that the Rules of Business, 1973, framed under Article 99 of the Constitution stand on a higher pedestal than an ordinary law or statutory rules, adding that these are framed under the authority of the Constitution.

He argued that any action taken pursuant thereto in the exercise of the executive authority of the federation is a constitutional act, which cannot be declared illegal merely on the basis of alleged contravention of a provision of the Constitution. "The impugned judgment is therefore liable to be set aside on this score alone," he stated.

Rana said that the single bench failed to appreciate that transfer of administrative control of regulatory authorities from one ministry of the federal government to another is not a policy issue which falls within the domain of the CCI.

He said that the administrative control of the authorities does not mean that the federal government or the relevant ministry can interfere in independent regulatory authorities’ functions as provided under the respective statutes.

"These remain unchanged," he stated. He added that it only means that the federal government’s functions under various laws with regard to these authorities, in future, will be dealt by the respective ministry instead of Cabinet Division for good governance and better functioning.

He said that the impugned judgment is against the Constitution and the same is liable to be set aside. In addition, he said, the right to raise the issue, whether a particular subject, was to be brought before the CCI and could only be raised by the federal government or the provincial governments.

The placement of such regulatory authorities under the respective ministries in no way affects the policy, regulation or control in respect of the said authorities as envisaged in Article 154 of the Constitution.

He prayed the court to set aside the impugned orders. He further submitted that during the pendency of the appeal the impugned judgment may kindly be suspended. The request for suspension was allowed.