IHC declares formation of CCoP illegal

The Islamabad High Court on Monday set aside a notification of the Cabinet Division through which Prime Minister Imran Khan had reconstituted the Cabinet Committee on Privatisation (CCoP) and made his Finance Adviser Abdul Hafeez Shaikh its chairman and two other advisers – Abdul Razak Dawood and Dr Ishrat Hussain – members of the committee.

Through the judgment, the IHC division bench, comprising Justice Aamer Farooq and Justice Ghulam Azam Qambrani, has declared the appointments of three PM’s advisers as chairman and members of the CCoP illegal.

Pakistan Muslim League-Nawaz (PML-N) MNA Rana Iradat, through his counsel, Barrister Mohsin Shahnawaz Ranjha – another PML-N leader – had challenged the inclusion of advisers in the cabinet committee and argued that only elected representatives of the people had the right to govern the country.

Barrister Ranjha had made the three advisers as well as the federation through secretary cabinet and joint secretary of the Cabinet Division respondents in the petition.

Through the notification issued on April 25, 2019, the prime minister had made his finance adviser the chairman and included his commerce adviser Abdul Razak Dawood and institutional reforms adviser Dr Ishrat Hussain as members.

According to the notification, PM Imran had nominated Minister for Communications Murad Saeed, Minister for Law Farogh Naseem, Minister for Planning Asad Umar, Minister for Privatisation Mohammadmian Soomro and Minister for Power Omar Ayub Khan members of the CCoP.

Since the CCoP, among other things, was deliberating on important matters such as privatisation of Roosevelt Hotel, assets of the Pakistan International Airlines and other government-owned organisations, the petitioner had also pressed for stay on the cabinet committee proceedings.

In the petition, Ranjha stated that unlike “ministers, advisers are not part of the federal government, they do not take oath, they are not responsible to parliament in terms of Article 91(6) of the Constitution, they are not subject to the qualification and disqualification provided under articles 62 and 63 of the Constitution, before and after their appointment, advisers are not bound to submit their statements of assets and liabilities … and they are not subject to any kind of scrutiny”.

The counsel stated that the Constitution mandates that “the state shall exercise its powers and authority through the chosen representatives of the people”, adding that the PM’s advisers were “not chosen representatives of the people”.

Ranjha maintained that the inclusion of any non-elected person as a member of the cabinet committee and/or making him chairman of the committee is beyond the mandate of the Constitution and is violation of the oath of the prime minister, who is bound to make informed decisions by taking into consideration the mandate of the Constitution, law and declaration made by courts of law, which are binding on him.

“The issuance of impugned notification is also violation of the fundamental principles of democracy and an act of giving any executive authority to an adviser would seem to show as if democracy is at war with itself,” Ranjha along with his co-counsels – Ashtar Ausaf Ali, Usman Ahmad Ranjha, Barrister Omer Azad Malik, Khalid Mehmood Ranjha and Asim Awan – stated.

“It would be an attempt to place non-elected persons at the helm of affairs to discharge the executive authority; which the Constitution solely reposes on the shoulders of the elected representatives which are additionally bound by the oath of their respective offices,” he continued.

He argued that the advisers were neither elected nor under oath of the Constitution and, therefore, cannot be part of the CCoP and delegation of powers to the advisors are ultra vires of the Constitutions.

He had prayed the court to declare the April 25, 2019, notification illegal, unlawful and set aside the same. The court accepted the prayer and set aside the impugned notification issued by the Cabinet Division wherein the CCoP was reconstituted.