High courts’ role in privatisation ends
President Dr Arif Alvi pictured during an interview. PHOTO: FILE
President Dr Arif Alvi on Thursday issued an ordinance to end the role of high courts in privatisation matters aimed at avoiding “unnecessary delays” in selling state assets and expeditiously resolving disputes.
The president issued the Privatisation Commission (Amendment) Ordinance 2023, according to a statement released by the presidency. It added the Privatisation Commission Ordinance of 2000 had been amended from Section 28 to Section 33 through the fresh ordinance.
The purpose of the new ordinance was to eliminate unnecessary delays in privatisation, resolve issues and ensure compliance with the principles of law and justice, said the presidency.
The ordinance was issued two days after Privatisation Minister Fawad Hasan Fawad met with the president and explained the rationale behind ad hoc legislation.
Through the ad hoc legislation, the Privatisation Appellate Tribunal has been established, which will perform those functions that were earlier done by high courts.
The interim federal government decided to introduce the legislation after the Lahore High Court (LHC) admitted a petition challenging the proposed privatisation of Pakistan International Airlines (PIA).
The presidency said that the Privatisation Appellate Tribunal shall have jurisdiction to hear and adjudicate civil and criminal matters relating to privatisation. The powers given to high courts in the Privatisation Commission Ordinance 2000 have now been transferred to the Privatisation Appellate Tribunal, it added.
President Alvi made one change in the draft that had earlier been approved by the federal cabinet.
He passed the amended ordinance proposed by the government after sub-section 2 (four) of Section 28 was changed, according to the presidency. It added that the president changed the proposed government ordinance to appoint a retired judge of the Supreme Court instead of a retired judge of the high court as the chairperson of the Appellate Tribunal.
Under the ordinance, a retired judge of the Supreme Court will now be the chairperson of the Privatisation Tribunal. The Appellate Tribunal shall have one technical member and one judicial member. The Supreme Court will have jurisdiction to hear appeals against decisions of the Appellate Tribunal.
Before the ordinance, all high courts had concurrent jurisdiction over privatisation cases. Under the ordinance, the federal government will establish a three-member Privatisation Appellate Tribunal. Any person aggrieved by the decision of the tribunal may file an appeal before the Supreme Court within 60 days.
Sections 30 and 33 of the Privatisation Commission Ordinance 2000 are repealed through the fresh ordinance. The president issued the ordinance under Article 89-1 of the Constitution.
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Interim Privatisation Minister Fawad Hasan Fawad said earlier this week that the purpose of the ordinance was to provide investors the confidence to invest with the understanding that instead of multiplicity of litigations, there would be only one forum to redress any legal issues arising out of any transaction with an appeal to the Supreme Court.
Section 28 has been amended that had empowered courts to take cognisance of privatisation matters. The new ad hoc law states “no court other than the Privatisation Appellate Tribunal constituted under this (new) ordinance, hereinafter called as the Appellate Tribunal, shall exercise jurisdiction under this ordinance”.
The life of a presidential ordinance is only 120 days and it can be extended by another 120 days by the National Assembly.
The authority to remove the chairman of the appellate tribunal has been given to the federal government. “The federal government may, by a notice of not less than 30 days and after affording opportunity of being heard, remove from office the chairperson or a member of the Appellate Tribunal on the ground that he is incapable of properly performing the duties of his office by reason of physical or mental incapacity or having been guilty of misconduct,”, said the approved ordinance.
The government has made the ad hoc legislation effective from the year 2000.
The ordinance stated that the Appellate Tribunal shall, for the purposes of hearing and deciding civil and criminal matters, have the same powers as are vested in a civil court or, as the case may be, in a criminal court trying a suit or case under the Code of Civil Procedure 1908 or the Code of Criminal Procedure 1898.
The Appellate Tribunal has been given powers to summon and enforce the attendance of any person and examine him on oath; requiring the discovery and production of documents and material objects; receiving evidence on affidavits; and issuing commissions for examination of witnesses and documents.
Through the ad hoc legislation, the caretakers have repealed Section 29 and replaced it with a new one. The newly inserted section states “any person aggrieved by an order of the Appellate Tribunal may within 60 days thereof prefer an appeal to the Supreme Court.”
Through this piece of legislation, the government has approved the transfer of all cases pending before high courts to the proposed Appellate Tribunal.
Published in The Express Tribune, December 15th, 2023.
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