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ISLAMABAD: The ruling party finally succeeded in getting overturned a landmark Supreme Court ruling — given on a case filed by its own people — that kept getting in the way of key appointments the government wanted to make. On Friday, the Supreme Court revisited its June 12, 2013, verdict that called for the constitution of a federal commission to ensure that all future appointments to public offices were conducted on the basis of merit.
Senior minister Khawaja Mohammad Asif had petitioned the Supreme Court before the PML-N came to power last year.
The court had, in its verdict, outlined a procedure for appointing heads of statutory, autonomous, semi-autonomous and regulatory bodies through the commission.
Also read: Court order on big jobs a blow to PML-N
But after the PML-N came to power, it realised the administrative hurdles it faced in implementing the court verdict, especially since some statutory bodies had their own procedures in place for appointments.
Commission no longer mandated to recommend names for key posts
Now, in a 10-page judgment authored by Justice Ijaz Ahmed Chaudhry, the Supreme Court held that it was the exclusive preserve of the federal government to appoint, on merit, the heads of statutory, autonomous, semi-autonomous and regulatory authorities under the acts/ordinances wherein certain criteria have been laid down.
“Now that there are no impediments in the process of appointments to the offices in the statutory bodies and to public sector companies, these will be filled up without loss of time by the end of Dec 2014,” the verdict ordered the government.
A preliminary report of the progress made towards the appointments will also be submitted by Attorney General Salman Aslam Butt for the perusal of judges by Dec 10.
The difficulties the government had been facing while filling vacancies at the top in different departments were highlighted during a hearing of a case by Ghulam Rasool, a serving officer in the Inter-Services Intelligence (ISI), by a three-judge bench headed by Chief Justice Nasirul Mulk.
As a consequence, the government submitted a statement highlighting that only three appointments — in the Pakistan Telecommunication Authority, Pakistan Television Corporation and Pakistan Steel Mills — could be made through the commission.
In contrast, there are 22 statutory bodies and 33 public sector companies established under the Companies Ordinance 1984 which are still headless.
The judgment explained that the June 2013 verdict, which was delivered by a bench headed by former chief justice Iftikhar Muhammad Chaudhry, overlooked the provisions of Article 90 of the Constitution, which stipulates that executive authority of the federation will be exercised in the name of the president by the federal government consisting of the prime minister and the federal ministers.
The Rauf Chaudhry-led commission and the power to make recommendations for the appointments in government departments are not in accordance with Article 90, where the power of appointment is vested in the federal government.
It appears that in the light of the observations made in the Khawaja Asif case judgment, the legal authority has been vested in the commission and its recommendations are made binding upon the prime minister, the judgment said.
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. It is also a settled law that courts should ordinarily refrain from interfering in the policy-making domain of the executive, the verdict explained.
The matter of appointing heads of different authorities was governed by specific statutory provisions which cannot be overlooked or replaced with some other mechanism.
The verdict also noted that there were commissions in other countries, including the United Kingdom, Canada and India, but these commissions were made pursuant to specific laws and/or statutes enacted for that purpose.
Published in Dawn, November 15th, 2014
