KARACHI: The fate of four advisers and over a dozen special assistants to the chief minister hangs in the balance as the Sindh High Court on Tuesday declared illegal the appointment of CM’s law adviser Barrister Murtaza Wahab and ruled that the use of executive authority by an adviser was unconstitutional.
Headed by Chief Justice Sajjad Ali Shah, a two-judge bench gave the rulings in its judgement on a constitutional petition of Advocate Fareed Ahmed Dayo against Mr Wahab’s appointments and ministerial portfolio.
The bench also held that the relevant sections of the Sindh Government Rules of Business that empowered the CM to appoint advisers and special assistants and provisions of the Sindh Advisers (Appointment, Powers, Functions, Salaries, Allowances and Privileges) Act, 2003 that delegated the executive powers to them were unconstitutional and of no legal effect.
Authored by the chief justice, the 27-page verdict stated that there were terms and conditions provided in the Constitution for advisers to be appointed by the prime minister, however, there were no such rules provided for the appointment of advisers to the chief minister.
The SHC rules CM’s powers to provide his advisers executive authority unconstitutional
It said that the day Mr Wahab was appointed he was simultaneously given the executive authority of the minister of law and other departments, which meant that he in fact was never appointed as an adviser. “Therefore, his appointment was not of an adviser; rather the constitutional framework was skewed to pass on the executive authority held by the CM,” the verdict said.
The judges observed in the judgement: “His appointment as the adviser on law being devoid of purpose and intent as envisaged by the Constitution and as well as being superfluous on the ground that the advocate general is the person competent for the job, we declare the appointment void and of no legal effect.”
The verdict also dealt with the Sindh CM’s lawyer’s contention that the Constitution was absolutely silent as to the criteria or qualification for the appointment of advisers to the extent that a milkman could be appointed as an adviser and observed that apex court had laid down the principle that the CM, under his constitutional dispensation, was neither a king nor a monarch, but was in the domain of trust and obliged to obey the Constitution and law like another ordinary citizen.
It noted: “His discretion is neither brazen nor arbitrary but subject to the Constitution, since he has taken oath to discharge his duties in accordance with the Constitution of Pakistan.”
“Probity and good governance demanded that the adviser has to fulfil the intent and purposes for which he is appointed,” the judges observed and added that the appointment of the advisers under Article 130(11) did not leave it open to the CM to appoint any person as adviser who did not fulfil the intent or purpose.
They said that the appointment of Mr Wahab as an adviser on law “being devoid of the intent and purposes as envisaged by the constitution and as well as being superfluous on the ground that the Advocate General is the person competent for the job, we declare the said appointment void ab-initio and of no legal effect”.
The judges observed in the verdict: “Whenever a person is appointed [who is not a public representative] and his remuneration and allied expenses are paid from the public exchequer, it becomes very important that the authority which is handpicking the individual has to ensure that his or her selection fits every bit of the purposes and intents. The rule of right person for the right job becomes evident”.
They observed that whenever the Constitution gave authority to the federal government or provincial government, it envisaged that such executive authority would be exercised by the prime minister and chief minister through their ministers.
The order said that the Rule 6(ii) and 7(ii) of the Sindh Government Rules of Business 1986 were in direct conflict with the scheme of democratic government as enshrined by the Constitution where right to exercise of the executive authority is solely given to the elected representatives. “However, both the rules have given authority to the CM to delegate exercise of the executive authority unto his advisers, for which there is no room in a democratic setup, or in the Constitution.”
“Therefore, in our considered view the Rule 6(ii) in toto and Rule 7(ii) to the extent of delegation of powers to the advisers are ultra vires of the constitution, thus void and of no legal effect,” the court ruled.
The court also declared the appointment of Mr Wahab as the chairman of the Board of Governors of law colleges in Karachi as without merit, illegal and void.
It also held that the Section 11 (1) of the Shaheed Zulifqar Ali Bhutto University of Law Act 2012 provided that the minister for law and parliamentary affairs acts as the pro vice chancellor of the university. Mr Wahab, who was an adviser, could not be given the executive authority to act as the minister, the judge observed and ruled that he, therefore, seized to be the pro VC of the university.
Published in Dawn, November 23rd, 2016