ISLAMABAD: The Islamabad High Court (IHC) on Tuesday suspended a verdict placing regulatory bodies under the Cabinet Division.

A two-judge IHC division bench, which consisted of justices Shaukat Aziz Siddiqui and Mohsin Akhtar Kayani, suspended Justice Athar Minallah’s orders setting aside a government notification placing five regulators under their respective ministries.

The court also notices to petitioners Mohammad Nawaz and All Pakistan CNG Association central chairman Ghias Abdullah.

The Cabinet Division secretary challenged Justice Minallah’s March 27 order through Additional Attorney General Mohammad Waqar Rana. The order had annulled the placement of the Oil and Gas Regulatory Authority (Ogra), National Electric Power Regulatory Authority (Nepra), Pakistan Telecommunication Authority (PTA), Frequency Allocation Board (FAB) and Public Procurement Regulatory Authority (PPRA) under their respective ministries.

Single bench had earlier suspended govt notification placing Ogra, Nepra, PTA, FAB and PPRA under relevant ministries

The order said the federal government would be at liberty to place the matter before the Council of Common Interests (CCI) for its decision, pursuant to powers conferred under Article 154.

The notification was issued by the government on Dec 19, 2016. After Justice Minallah’s order, the government issued the notification once again, following which a worker from Pakistan Justice and Democratic Party (PJDP), Mohammad Nawaz, petitioned the IHC against the government’s decision and urged the court to declare the move to be unlawful.

Justice Minallah then suspended the notification, which was issued in June, and summoned the prime minister’s principal secretary Fawad Hasan Fawad and Cabinet Division Joint Secretary Dr Iram Khan “to explain as to why proceedings may not be initiated against them under the Contempt of Court Ordinance 2003” for allegedly violating a court order.

Justice Minallah’s order had “unequivocally held that neither the Federation of Pakistan nor the prime minister is vested with jurisdiction or power to interfere with or alter, change or amend entry 53 of clause 2 of schedule-II of the Rules of Business, 1973”.

“Despite the judgement of this court, the federal government has issued [the] memorandum,” it order read, adding that the memorandum appeared to wilfully flout and disregard the court’s previous judgement.

However, Mr Rana stated in the petition that the prime minister had transferred “administrative control” of the bodies for the smooth and improved transaction of the capital’s business.

He said the 1973 Rules of Business, framed under Article 99, stand on a higher pedestal than an ordinary law or statutory rules. He argued that any action taken pursuant thereto in the exercise of the federation’s executive authority is a constitutional act, which cannot be declared illegally merely on the basis of alleged contravention of a provision of the Constitution.

“The impugned judgement is therefore liable to be set aside on this score alone,” he stated.

Mr Rana said the single bench failed to appreciate that transferring administrative control of regulatory authorities from one ministry of the federal government to another is not a policy issue that falls within the CCI’s domain.

Administrative control of the authorities does not mean that the federal government or relevant ministry can interfere in such authorities’ independent regulatory functions, as provided under respective statues.

“These remain unchanged,” Mr Rana said.

He added that it only means that the federal government’s functions under various laws with regard to these authorities will, in the future, be dealt with by the respective ministry instead of the Cabinet Division for good governance and better functioning.

He said the impugned judgement was against the Constitution, and is liable to be set aside. In addition, he said, the right to raise the issue of whether a particular subject is to be brought before the CCI could only be raised by the federal or provincial governments.

The placement of such regulatory authorities under the respective ministries in no way affects policy, regulation or control with respect to the said authorities as envisaged by Article 154, he said.

Published in Dawn, July 19th, 2017