ISLAMABAD: The Islamabad High Court (IHC) on Thursday declared the appointment of Vidya Khalil as chairperson of the Competition Commission of Pakistan (CCP) and Dr Mohammad Saleem and Dr Shahzad Ansar as its members unconstitutional.
An IHC division bench headed by Chief Justice Athar Minallah announced the verdict on an appeal filed by the federal government against an earlier order that had reinstated Ms Khalil, Mr Saleem and Mr Ansar.
The government had filed the intra-court appeal against the decision of an IHC single member bench that had set aside the termination of the services of the CCP chief and members.
On Oct 15, 2018 the federal government had ordered removal of the CCP chairperson and members.
The notifications for their removal were issued after a decision taken by the federal cabinet at its meeting on Oct 4, 2018.
Ms Khalil was initially appointed a member of the CCP for three years vide a notification dated Dec 17, 2014. She was later appointed CCP chairperson vide a notification issued on Dec 23, 2014. As her term expired on Dec 2, 2017, she was recommended to be reappointed as a member and chairperson of the CCP for another term of three years. She was reappointed vide a notification dated Dec 14, 2017.
Dr Saleem and Dr Ansar had applied for the posts of members of the CCP in response to advertisements published in various newspapers on Feb 26, 2017.
On completion of the selection process they were appointed as members of the CCP vide a notification dated Dec 4, 2017.
However, the reappointment of the chairperson and fresh appointments of the CCP members were not placed before the federal cabinet for consideration and approval. Instead, recommendations in this regard were made by the finance minister and later approval was granted by the then prime minister without intervention of the cabinet.
The court noted that the Supreme Court through its Aug 18, 2016 judgement in the Mustafa Impex case had enunciated the principles and law regarding the interpretation of the expression “federal government”.
Later, the federal cabinet, at its meeting on Oct 4, 2018, decided to terminate the reappointment of Ms Khalil, Dr Saleem and Dr Ansar as chairperson and members the CCP.
According to the previous judgement of the IHC, the judge held that “since the tenure of the Respondents was fixed under the law, therefore, the termination was void”.
During the hearings of the appeal, Additional Attorney General Tariq Mehmood Khokhar argued that the judge had not correctly appreciated the law laid down by the Supreme Court. The appointments of the chairperson and the members of the CCP were void and, therefore, the federal cabinet had rightly decided to terminate their appointments, he said.
Syed Ali Zafar, the counsel for Ms Khalil and others, contended that the government had misinterpreted the provisions of the Competition Act 2010. “It is implicit in the proviso to section 14 of the Act of 2010 that the power is vested in the federal government to delegate its functions and powers relating to appointing a member or the chairman and the expression ‘mode for appointment’ includes the power to appoint,” he argued.
The lawyer said that the CCP appointments were made through a transparent selection process. The government had also misinterpreted the law laid down by the Supreme Court in the Mustafa Impex case as the law enunciated by the Supreme Court in this case was not attracted in relation to appointments sought to be made under the Act of 2010, he argued.
However, the court noted that these appointments “had not been placed before the Federal Cabinet for consideration, rather, pursuant to the delegated powers, the Prime Minister of Pakistan had approved the recommendations made by the then Finance Minister. The Federal Cabinet was obviously bypassed.”
The IHC order noted that the government had invoked the constitutional jurisdiction of this court and had explicitly raised the question of the validity of the officials’ reappointment and appointments and a specific prayer was also sought in this regard.
“In the circumstances, by no stretch of the imagination can it be suggested that the purpose to act fairly and to reach just ends by just means has been defeated or that the Respondents have been prejudiced in any manner. Moreover, in the facts and circumstances of the matter in hand it would be a futile and unnecessary exercise to refer the matter to the Federal Cabinet to give a hearing to the Respondents in respect of the validity of their appointments,” the court observed.
The court set aside the judgement of the single member bench that had reinstated Ms Khalil, Dr Saleem and Dr Ansar and allowed the appeal filed by the government.
Published in Dawn, April 24th, 2020