ISLAMABAD, June 13: The federal government’s counsel told the Supreme Court on Tuesday that the government could not change its opinion on matters on which it had constitutional authority.
Presenting arguments in the Pakistan Steel Mills privatisation case, Abdul Hafeez Pirzada argued that courts ‘seldom’ interfered on matters on which the government enjoyed legal or constitutional protection, ‘even though it seems wrong.’
“The court moves only when an executive decision seems to be tainted with fraud or lacked procedural propriety, added Mr Pirzada, who had been twice elected MNA from the constituency where the mill is situated in Karachi.
“Would we accept a cabinet decision if … it decides to privatise the Supreme Court building,” Chief Justice Iftikhar Mohammad Chaudhry asked the counsel.
“There is a limit of power on the parliament too,” Mr Pirzada replied and defended himself by saying that the court was misreading his statement.
A nine-member bench, hearing petitions challenging the sale of the country’s largest industrial complex for what the petitioners call a ‘paltry sum’ of Rs21.68 billion, is likely to settle the controversy on Wednesday when it announces its verdict.
The court has already frozen, till mid June, transfer of the PSM management to the three-party consortium which has purchased the mill.
Referring to a Council of Common Interests meeting held in 1997, Mr Pirzada said: “Decisions taken on matters relating to the privatisation have attained finality and can be changed only by referring the same to a joint session of parliament.”
Therefore, it could not be said that PSM privatisation had bypassed the CCI, he argued and said that the council had endorsed the government’s privatisation plan in explicit and unambiguous terms. “It has also mandated the cabinet and the Privatisation Commission to carry out this process.”
Justice Tassadduq Hussain Jillani, a member of the bench, asked the counsel whether he had been told by the federal government why no meeting of the CCI had been held over the past four to five years ‘when at least one meeting is mandatory every year.’
Mr Pirzada replied that ‘he will answer the question after getting instructions from his client’ and claimed that the privatisation of the PSM did not suffer from any constitutional illegality as every legal requirement had been followed.
“The privatization was done strictly in accordance with the executive authority conferred by the constitution, wherein both the federation and the provinces enjoyed the authority to dispose of their properties without referring the matter to the council.”
“The impression as if the CCI has to approve each and every privatization is wrong and the council replaces the cabinet only when an issue relating to part two of the federal legislative list or electricity arises,” he said.
Mr Pirzada said that it was not necessary to ‘constitute’ the CCI all the time as the body existed on the force of the constitution. “A vacancy in the Supreme Court or National Assembly will not mean that the apex court or the assembly cease to exist,” he argued.
However, he agreed when the chief justice observed that virtually at the moment, the CCI was not functioning, and recalled that ‘one of the grounds while ousting the government of Benazir Bhutto, also approved by the apex court, was that the CCI was not functional.’
Referring to the Privatisation Commission Ordinance 2000, the chief justice said that any role of the CCI was not visible in the law.
The court asked Mr Pirzada to provide the terms of reference given to the financial advisers to assess the worth of the mills for privatization.
