ISLAMABAD: The Islamabad High Court (IHC) on Friday ruled that the appointment of Islamabad Mayor Sheikh Anser Aziz as chairman of the Capital Development Authority (CDA) is illegal.

IHC Justice Athar Minallah set aside two notifications appointing Mr Aziz part-time chairman of the CDA and an ex-officio member of the authority’s board.

The bench also disqualified Mr Aziz’s appointment as ex-officio member on account of a conflict of interest, saying that he was required to submit a statement to the federal government prior to his appointment.

IHC bench sets aside notifications appointing Sheikh Anser Aziz part-time chairman, ex-official member of CDA board

Mr Aziz told Dawn that he will challenge the high court’s verdict in the appropriate forum.

Justice Minallah in a 38-page judgement disposed of four identical petitions against Mr Aziz’ part-time appointment as CDA chairman.

The court ruled that his appointment violated section 6 read with section 8 of the CDA Ordinance and the law enunciated by the Supreme Court.

In response to Additional Attorney General Afnan Karim Kundi’s argument that the office of CDA chairman was not a public office, the IHC bench said membership of the CDA board and the office of the authority’s chairman definitely fall within the ambit of the expression ‘public office’.

Mr Aziz was appointed member of the CDA board through a notification issued by the federal government on Sept 6, 2016, and was also made part-time chairman through another notification issued the same day.

The court observed that both notifications were issued in violation of the provisions of the CDA Ordinance, and directed the federal government to initiate the process to select an eligible person to be made a member of the CDA board for a fixed term as specified under section 6(3) of the ordinance, and to complete the selection process and appointment a chairman for a fixed five-year period from amongst the members.

The federal government shall complete the process within 45 days from the date of the announcement of the judgement, the verdict said.

It said CDA members, if hit by the disqualification or appointment in violation of the law, may serve until appointments have been notified in accordance with the law, in order to ensure continuity.

The bench, however, granted protection to the acts and actions undertaken during the period that Mr Aziz served as part-time CDA chairman.

The petitioners had argued that the Constitutional doctrine of the separation of powers requires that the executive and legislature exercise their power within their respective spheres.

Mr Aziz was elected mayor under the Islamabad Capital Territory Local Government Act 2015, and his appointment as CDA chairman was made in violation of section 3 of the local government act.

The mayor is an elected office, while a member of the CDA board is appointed for a fixed term.

Moreover, the nomination of the mayor as a CDA member also violated the CDA Ordinance, the petitioners said.

The counsel for the petitioners argued that there was no concept of the nomination of an ex-officio member in the CDA board, and the Sept 6, 2016, notification was therefore illegal and without lawful authority.

The petitioners contended that Mr Aziz is also the CEO of a construction company – Anser Brothers – and holds 90pc of its shares.

This company took part in an auction of commercial plots in Islamabad and was also awarded a contract by the CDA. The petitioners’ counsel argued before the court that the appointment was also against the principle of conflict of interest.

Mr Kundi, representing the government, had argued that the office of CDA chairman was not a public office. He argued that according to section 15 of the General Clauses Act 1897, where a statute confers the power to appoint any person to fill any office then it would include the power to appoint ex-officio. Mr Kundi cited several precedents in support of his arguments.

Kashif Ali Malik, legal adviser to the CDA, argued that the government was vested with the power to appoint any individual as a member and then, from amongst the members, a chairman. They said no legal provision had been violated in appointing Mr Aziz, and his appointment was inevitable for the smooth transition of assets and employees from the CDA to the Metropolitan Corporation Islamabad.

The IHC bench noted that the powers of the federal government to make appointments are not unfettered.

Quoting from SC judgements, the bench pointed out that “even where appointments are to be made in exercise of discretionary powers, it has become well settled that such powers are to be employed in a reasonable manner”.

Published in Dawn, December 30th, 2017