Reversal: Ex-CJ’s hiring commission verdict overturned

SC restores federal govt’s ‘exclusive preserve’ to make top-level appointments.

ISLAMABAD:

The Supreme Court has reversed former chief justice Iftikhar Muhammad Chaudhry’s judgment regarding formation of a commission for selecting heads of various statutory, autonomous and regulatory bodies.

On June 12, 2013, Justice Chaudhry – while giving a judgment in the Khawaja Asif case – had directed the newly elected government to constitute a hiring commission to ensure merit in all future top-level public appointments.

Seventeen months later, the federal government requested the top court to review its judgment and Attorney General for Pakistan Salman Aslam Butt argued against the verdict before a three-judge bench, headed by Chief Justice Nasirul Mulk.

Issuing a 10-page ruling, the bench on Friday excluded the condition of formation of a commission for top-level appointments. The judgment – authored by Justice Ijaz Ahmed Chaudhry – says the SC’s June 2013 ruling had overlooked the provisions of Article 90 of the Constitution.

“The appointment of a commission and the power to make recommendations for such appointments is not in accordance with Article 90 of the Constitution where the power of appointment has been vested in the federal government,” reads the judgment.

It is the exclusive preserve of the federal government to appoint heads of statutory, autonomous, semi-autonomous and  regulatory bodies  and also to make hiring on merit under the acts/ordinances wherein certain criteria has been laid down for such purpose, it adds.

“It is by now a well-settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the state.”

The judgment observes that the matter of appointment of heads of statutory, autonomous/semi-autonomous bodies, corporations, regulatory authorities etc, is governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism.

The court noted that similar commissions exist in other countries – including the United Kingdom, Canada and India. However, all those commissions were made pursuant to specific laws/statutes enacted for that purpose, it said.

“It is, therefore, suggested that the government may consider the establishment of such a commission through legislation in order to ensure transparency, which will also enable the executive authority to make an informed decision while making appointments.”

The bench also noted that since there are no impediments in the process of appointments to the offices in the statutory bodies and to public sector companies, they shall be filled up without loss of time by the end of December 2014.

“A preliminary report of the progress made towards the appointment shall be submitted by the learned AGP for our perusal in chambers (SC) by the December 10, 2014,” the judgment says. According to the list, there are 22 statutory bodies and 33 public sector companies established under Companies Ordinance, 1984, whose heads are yet to be appointed.

Published in The Express Tribune, November 15^th, 2014.