ISLAMABAD - Good news for the government as the Supreme Court has removed the condition of appointments through commission in the statutory bodies and public sector companies.
Ex-Chief Justice Iftikhar Muhammad Chaudhry on the petition of incumbent Federal Minister for Water and Power Khawaja Asif, who also holds the portfolio of defence ministry, had passed judgment directing the federal government to appoint heads of various institutions through a three-member commission, headed by the Federal Ombudsman.
Due to that judgment 22 statutory bodies and 33 public sector companies are still without heads. The PML-N government did not fill up these positions on the plea that the commission requirement is impediment in their way.
However, the Friday’s judgment, authored by Justice Ijaz Ahmed Chaudhry, removed the hurdle and directed the federal government to fill the posts by the end of December 2014 and ordered the attorney general to submit a preliminary progress report by December 10 in his chamber for perusal.
A three-member bench headed by Chief Justice Nasirul Mulk after hearing the arguments of all parties had reserved the judgment on 30-10-2014. It says, “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.”
The judgment noted it is well settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the state. It is also a settled law that the Judiciary should ordinarily refrain from interfering in policy making domain of the Executive.
“We have noted that while making such directions (appointments through commission), the provisions of Article 90 of the constitution were overlooked by this court,” the judgment read.
The Article 90 (1) states that the executive authority of the federation shall be exercised in the name of the president by the federal government, consisting of the prime minister and the federal ministers, which shall act through the prime minister, who shall be the chief executive of the federation. Section (2) states: In the performance of his functions under the constitution, the prime minister may act either directly or through the federal ministers.
The court however observed, “Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner.” The judgment said making appointments is open to judicial review on the touchstone of the constitution and the laws. “In case of any illegality in the ordinary process of appointment, this Court as well as the High Courts have sufficient powers under Articles 184 & 199 of the constitution to exercise judicial review,” the court warned.
The judgment stated that the contents of 26 and 27 paras of Kh Asif judgment were in the form of certain recommendations, which could not have assumed the status of law. It said the matter of appointment of heads of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities’ etcetera are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism.
“We have noted that various Acts /Ordinances lay down specific criteria/qualifications for high-level appointments and empower the federal government to make such appointments.” The judgment said United Kingdom, Canada and India and Australia have commissions but those were made pursuant to specific laws/statutes enacted for that purpose. In Pakistan, no statutory commission has been created for examining suitability of persons for appointment to high public offices. The government may consider the establishment of such a commission through legislation in order to ensure transparency.