Mayor Aziz loses CDA hot seat

IHC sets aside notification of his appointment as civic body’s chairman

ISLAMABAD: In a blow to the civic body in the capital, a court on Friday declared the mayors’ additional charge as the chairman of CDA as illegal.

In its ruling, the Islamabad High Court’s (IHC) Justice Athar Minallah set aside two notifications pertaining to the appointment of Islamabad Metropolitan Corporation (IMC) Mayor Sheikh Ansar Aziz as the chairman of Capital Development Authority (CDA).

The court, however, ruled that all acts committed or orders passed between Aziz’s appointment on September 6, 2016, until his dismissal by the judgment, shall be protected under the de facto doctrine.

Justice Minallah further ordered the federal government to complete the selection process for appointing a new chairman of CDA — for a tenure of five years — within 45 days after the judgment is announced.

The petitioners had challenged the notifications announcing Aziz as the chairman of the civic body on a part-time basis after he had been appointed as an ex-officio member of CDA’s Board.



The petitioners’ counsel — GM Chaudhry, Raja Mohammad Shafqat Abbasi, Husnain Ibrahim Kazmi and Ch Shafiqur Rehman — had argued that under the doctrine of separation of powers, as enshrined in the Constitution, do not allow the mayor to assume the post of CDA chairman.

They further argued that Aziz’s appointment as CDA chairman had also violated the Islamabad Capital Territory Local Government Act 2015 — under which he had been elected as mayor of the city.

The counsel further argued that Aziz was also listed as the chief executive officer and shareholder of Anser Brothers (Pvt.) Ltd. He held 90 per cent of all shares of the company.

Moreover, arguing the conflict of interest which Aziz may have as CDA chairman, the petitioners argued that the company had participated in the auction of commercial plots and was awarded a contract by the CDA. His appointment, on account of the conflict of interest, was therefore in violation of section 8(e) of the CDA Ordinance of 1960, they argued.

Additional Attorney General Afnan Karim Kundi argued that remedies under Article 199 of the Constitution can only be invoked against a person who holds or purports to hold a public office. In this regard, Kundi argued that the office of the CDA chairman was, in fact, not a public office.



Kundi stated that the petitioners were required to establish their bonafides otherwise the extraordinary relief by way of issuing a writ of quo warranto was not warranted. He went on to argue that a clear violation of law has to be shown and proved.

However, he contended that the petitioners have not been able to do so.

In the judgment, though, Justice Minallah noted that an independent and autonomous civic authority was key to realising the vision of the founding planners to implement the master plan of the capital in letter and spirit.

He added that the law was clear that the authority shall be independent and autonomous.

“It is, therefore, the statutory duty of the federal government to ensure that the intent of the legislature is respected.”

To Justice Minallah, the impression that CDA had become an example of regulatory capture could only be dispelled if it is demonstrably seen performing its functions as an independent and autonomous planner, developer and regulator by enforcing the provisions of the Ordinance of 1960 in letter and spirit.

“A lack of will to enforce the laws within the capital will lead to the creation of slums and cause irreparable damage and frustrate the vision of the founding planners of the capital of Pakistan,” he said.

“The rule of law and not the rule of men can free the [capital development] authority from the perception of its regulatory capture,” Justice Minallah stated.

The judge was of the view that CDA has to work independently to tackle the looming environmental crisis on account of unregulated urbanization and construction.

“This court has been consistently observing and it is reiterated that if urgent steps are not taken, posterity will never forgive those who are in the position to enforce and implement the spirit and essence of the laws which have been blatantly violated for the past decades,” he stated.



Subsequently, Justice Minallah said, it is the duty of the federal government, the parliament and every other organ of the state to ensure that the people of Pakistan have a capital which is an example of rule of law and a reflection of the vision of the founding planners.

The first step in this direction is to ensure the autonomy of the authority and to appoint the best of the best on merit and according to the intent of the legislature as members of the board, he concluded.

Published in The Express Tribune, December 30^th, 2017.