ISLAMABAD: The cabinet has approved the restructuring of the Capital Development Authority (CDA) by appointing private and ex-officio members, but the implementation of these measures remains in question because the government would need to have an amendment to the CDA Ordinance passed by parliament to do so.
It may be difficult for the government to get the ordinance through the Senate, where it is has a minority.
The cabinet decided to restructure the CDA earlier this month by appointing a nine-member board with five members from the private sector and four ex-officio members and re-designating the post of CDA vice chairman as managing director or chief executive.
The cabinet also directed statutory changes, if needed.
Some officials and a former legal adviser to the CDA told Dawn that the CDA Ordinance will need to be amended to implement the cabinet decision. New legislation will be required to make changes to the ordinance, which could be a difficult task for the government, they said.
Proposals include appointing nine-member board with five private and four ex-officio members, which former legal adviser says is not covered by CDA Ordinance 1960
They said that a December 2017 Islamabad High Court judgement that was not challenged by the CDA or the federal government and has attained finality interpreted the CDA Ordinance 1960 in detail.
Former CDA legal adviser Kashif Malik said that cabinet has approved the appointment of five ex-officio members: the managing director, housing authority chief executive, CDA director general finance and Islamabad and Rawalpindi chief commissioners.
But in a case regarding the appointment of then CDA chairman Mayor Sheikh Anser Aziz, the IHC held that there was no provision for ex-officio members in the CDA Ordinance.
Mr Malik said that para 26 of the judgement stated: “Section 6 [of the CDA Ordinance] explicitly prescribes the criteria and conditions, and when read with section 8 leaves no ambiguity that neither can an ex officio member be appointed nor can a person be directed to discharge the functions of the chairman of the board on a part time basis in the absence of exceptional circumstances.”
The judgement added that the “impugned notifications” regarding the appointment of Mayor Aziz as the chairman of the CDA were “issued in violation of the express provisions of the ordinance of 1960 and the law enunciated by the apex court.”
A change in the ordinance will be required if the government wants to appoint ex-officio members, Mr Malik said.
The government is also bound to appoint a chairman after a competitive and transparent process in light of the law laid down by the Supreme Court in the 2013 case of Mohammad Ashraf Tiwana, he said, which was also referred to in the high court in the case of Mayor Aziz.
Discussing the redesignation of the post of vice chairman as managing director, Mr Malik said there was no provision to this effect in the ordinance either.
The CDA’s Conduct of Business Regulations 1985, which were made following the ordinance, also do not contain such a provision. The CDA Officers Association has raised concerns regarding the post of managing director as well.
Since CDA is a statutory body, members from the private sector cannot be appointed without a competitive and transparent process in light of the IHC judgement, Mr Malik said.
Mr Malik said it was irrelevant whether these members are paid salaries or not – the proposed members would have no executive role and would not draw a salary – adding: “The appointments have to be made strictly in accordance with the CDA Ordinance 1960.”
In its recent meeting, the cabinet approved the appointment of five private members subject to the necessary security clearance. The members include architects Nayyar Ali Dada and Ali Asghar, former CDA chairman Kamran Lashari, Quaid-i-Azam University Vice Chancellor Mohammad Ali and retired Brig Nadeem Rehmatullah.
The CDA chairman will be appointed from amongst these private members. Mr Lashari, who served as the post between 2003 and 2008, also faced cases related to Grand Hyatt project and Diplomatic Shuttle Service.
CDA officials said it seemed that the new changes will not be enacted because of the legislation issue, and the fate of these decisions would be no different from the attempts made during the last PML-N government by then minister Dr Tariq Fazal Chaudhry to amend the CDA Ordinance.
They said that amendments can be made for 120 days through presidential ordinances, and they can be extended once for another 120 days.
Dr Chaudhry made a few changes to the ordinance through a presidential ordinance during the PML-N government. New legislation was not passed after the ordinance’s extension expired.
When contacted, Special Assistant to the Prime Minister on CDA Affairs Ali Nawaz Awan said that most of the changes proposed to restructure the CDA are covered by the ordinance.
“If the need arises, we will go for making amendments,” he said.
Published in Dawn, November 20th, 2019