ISLAMABAD: A larger bench of the Supreme Court (SC) is poised decide whether the top court can revisit its June 12, 2013 judgment in Khawaja Muhammad Asif's case on transfers and shuffling of high ranking government officials by the caretaker government.
In a 45-page judgment over the petition, filed by Pakistan Muslim League senior leader Khawaja Muhammad Asif against the transfers, postings and shuffling of high ranking officials by the caretaker government, the apex court had on June 12, 2013, directed the newly elected government to constitute a commission for ensuring merits in all future public appointments.
Though the decision was hailed as a victory then, the PML-N government has now sought a revisit on the judgment.
During the hearing of suo motu case about the government’s failure regarding the appointment of heads of different departments’ on Thursday, Attorney General for Pakistan (AGP) Salman Aslam Butt appeared before two judge bench headed by Chief Justice Nasirul Mulk.
He stated that chairman Federal Service Tribunal will be appointed soon as summary has already been sent to Prime Minister in this regard.
Regarding the appointment of heads of other departments, Butt told the court that the government is facing difficulty due to the court’s judgment in Khawaja Asif case.
Upon this, the bench asked that if the government is facing difficulty then it should have filed review petition against the court’s June 12, 2013 judgment.
AG requested the court to review the case, but the chief justice rejected his plea and said that law does not allow the court to review the judgment in this matter and there is no precedent for such a review.
The AG submitted that the court can revisit the judgment at any stage. The court, however, decided to form a five member larger bench to decide that whether it can revisit June 12, 2013 judgment in Khawaja Muhammad Asif case or not. The court also observed that Justice Ijaz Ahmad Chaudhry and Justice Gulzar Ahmad will be part of larger bench since both were members of the original bench that had passed the June 12, 2013, judgement.
It must be mentioned that the court on June 12, 2013, observed that it is a fundamental right of a Pakistani citizen under Article 9 of the Constitution that national wealth/resources must remain fully protected whether they are under the control of the banks or autonomous and semi-autonomous bodies.
“In order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by and comprising two other competent and independent members having impeccable integrity, may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Government through open merit based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controlled corporations, autonomous and semi-autonomous bodies, etc. The Commission should be mandated to ensure that all public appointments are made solely on merits”, the court ordered the government.
The judgment noted that there were more than 100 organisations/corporations, which were causing colossal loss of trillion of rupees to the public exchequer, like Pakistan International Airline, Pakistan Railways, Pakistan Steel Mills, PEPCO, PASCO, Utility Stores Corporations, OGDCL, NEPRA, PEMRA, PTA, KESC, SSGPL, NICL, etc.
Giving the details about the functioning of the commission, the judgment said the commission should regulate public appointments processes within his remit;
“Implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections.
III. chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary.
IV. appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate.
V. report publicly on a public/statutory body’s compliance with the Code of Practice, including examples of poor and good performance, and best practice.
VI. investigate complaints about unfair appointment process.
VII. Monitor compliance with the Code of Practice.
VIII. Ensure regular audit of appointments processes within his remit.
IX. Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March.
X. Take any other measures deemed necessary for ensuring that processes for public sector appointments that fall in his remit are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are fully guarded against”
The judgment said that all public appointments must be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities have a proven record that they best match the need of the public body in question.
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