Abolishing the condition of formation of a commission regarding the appointments of heads of various statutory autonomous and regulatory bodies, the Supreme Court on Friday termed it an exclusive preserve of the federal government to fill slots on merit.
The then Chief Justice, Iftikhar Muhammad Chaudhry, had announced a judgement in response to a petition filed by Khawaja Muhammad Asif and issued directives to the incumbent PML-N government to constitute a commission to ensure all future public appointments on merit; however, the government had requested the court to review its verdict.
On October 30, 2014, a three-member bench of Chief Justice Nasirul Mulk reserved its judgement in response to a federation’s review petition in the current matter. Announcing its reserved judgement over the federal government’s review petition, the court overturned the judgement of the then Chief Justice, Iftikhar Muhammad Chaudhry, on the formation of a commission to ensure transparency in the appointments of heads of various statutory, autonomous and regulatory bodies.
The court observed that there are no impediments in the process of appointments to the offices in the statutory bodies and to public sector companies and the posts shall be filled without any loss of time by the end of December, 2014. The court also directed Attorney General for Pakistan (AGP) to submit a preliminary progress report on the appointment for perusal of the judges in chambers by December 10, 2014.
“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 the appointments has been vested in the federal government,” the verdict said. The court suggested that the government may consider the establishment of such a commission through a legislation in order to ensure transparency – which would also enable the executive authority to make informed decisions while making appointments.
“It is a settled law that the courts should ordinarily refrain from interfering in the policy-making domain of the executive,” the court ruled. The court recalled that in the Executive District Officer (Revenue), District Khushab Vs Ijaz Hussain (2012 PLC(CS) 917) this court has held that the framing of the recruitment policy and rules thereunder fell in the executive domain; that the Constitution of Pakistan is based on the principle of tracheotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law and that courts could neither assume the role of policy maker nor that of a law-maker.
The court further ruled that the federal government has been expressly empowered by the legislature to make high-level appointments in accordance with the criteria specified in the concerned acts or ordinances. “It is also made clear that the court’s deference to the executive authority lasts for only as long as the executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribes its power,” says the judgement adding that even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner.
“Even otherwise, the policy adopted by the federal government in making appointments is open to judicial review on the touchstone of the Constitution and the laws made thereunder, i.e., 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,” according to the judgement.
The court noted that there are similar commissions in other countries including the United Kingdom, Canada and India. However, all those commissions were made pursuant to specific laws and statutes enacted for that purpose. The court observed that in Australia, the Australian Public Service Commission was established pursuant to the Public Service Act, 1999. Similarly in Canada, the Federal Accountability Act, 2006, was enacted by the Parliament for, inter alia, putting in place measures, respecting administrative transparency, oversight and accountability.
However, no public commission on appointments has been created yet. No statutory commission has been created in Pakistan to examine the suitability of persons to be appointed to high public offices. “It appears that in light of the observations made in paragraphs 26 and 27 of the Khawaja Asif judgement, the legal authority has been vested in a commission and its recommendations are being made binding upon the prime minister,” the verdict added.
The court further ruled that 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 court ruled that the matter of the appointments of heads of the bodies are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism.
The court further ruled that the learned AGP had further argued that since assumption of office by the Prime Minister and the Federal Cabinet, the Federal Government has sincerely tried to fully comply with the said judgement regarding the proposed Commission and initially certain Public Sector Organisations were included in the schedule of posts under the purview of the Commission but despite the sincere endeavours there are administrative issues that were creating hurdles.
“In this regard a list had also been filed whereby it has been brought to the notice of this Court that so far only appointments can be made in the Public Sector Organizations; Pakistan Telecommunication Authority including Member Technical and Member Finance, and other public sector organisations including Pakistan Television Corporation and Pakistan Steel Mills Limited,” according to the judgement. According to the list, there are as many as 22 statutory bodies and 33 Public Sector Companies established under Companies Ordinance, 1984, whose heads are yet to be appointed by the commission.
SOURCE: RECORDER REPORT