Apex court rules that federal govt is empowered by legislature to make high-level appointments according to specified criteria
Says govt’s policy open to judicial review in case of any illegality
The Supreme Court on Friday reversed former chief justice Iftikhar Muhammad Chaudhry’s judgment on the formation of a commission to ensure transparency in the appointment of heads of various statutory, autonomous and regulatory bodies.
On June 12, 2013, the former CJP had directed the newly-elected government to constitute a commission to ensure all future public appointments were made on merit.
The petition was filed by Pakistan Muslim League-Nawaz’s Khawaja Asif, who is now the defence minister.
“You have taken up a double-edged sword by challenging the appointments made by the caretakers. Mind it, the government-in-waiting has to follow and maintain the highest standards of transparency and merit for future appointments to avoid the interference of the apex court,” Chaudhry was quoted as saying then while reading out the ruling.
After 17 months, the federal government requested the top court to review its judgment in the Asif case.
Last month, Attorney General for Pakistan Salman Aslam Butt argued on behalf of the federal government before a three-judge bench of the apex court headed by Chief Justice Nasirul Mulk.
The bench, while issuing a 10-page ruling on Friday, excluded the condition about the formation of the commission with regard to the appointment of heads of various statutory bodies, autonomous and regulatory bodies.
Justice Ijaz Ahmed Chaudhry observed it is the exclusive preserve of the federal government to appoint the heads of the said bodies, as well as to make appointments based on merit under acts and ordinances wherein certain criteria has been laid down for such a purpose.
“Now that there are no impediments in the process of appointments to the offices in the statutory bodies and to public sector companies, they shall be filled up without the loss of time by the end of December, 2014. A preliminary report of the progress made towards the appointment shall be submitted by the learned Attorney General for Pakistan for our perusal in chambers (SC) by the 10th of December, 2014,” the judgment said.
According to the list, there are 22 statutory bodies and 33 Public Sector Companies established under the Companies Ordinance, 1984, whose heads are yet to be appointed.
The CJP noted that the court, in its June 12, 2013 ruling, had overlooked the provisions of Article 90 of the Constitution.
“The appointment of a commission and the power to make recommendations for such appointments is not in accordance with Article 90 of the Constitution where the power of the appointment has been vested in the federal government,” the judgment said.
The bench, however, suggested that the government may consider the establishment of such a commission through legislation in order to ensure transparency — which would also enable the executive authority to make an informed decision while making appointments.
The judgment further says it is also a settled law that the courts should ordinarily refrain from interfering in the policy-making domain of the executive.
“In Executive District Officer (Revenue), District Khushab Vs Ijaz Hussain (2012 PLC(CS) 917) this court has held that the framing of the recruitment policy and rules there under fell in the executive domain; that the Constitution of Pakistan is based on the principle of tracheotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law and that courts could neither assume the role of policy maker nor that of a law maker.”
The judgment said the federal government has been expressly empowered by the legislature to make high-level appointments in accordance with the criteria specified in the concerned acts or ordinances.
“It is also made clear that the court’s deference to the executive authority lasts for only as long as the executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribes its power. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner. Even otherwise, the policy adopted by the federal government in making appointments is open to judicial review on the touchstone of the Constitution and the laws made there under i.e. in case of any illegality in the ordinary process of appointment, this court as well as the high courts have sufficient powers under Articles 184 & 199 of the Constitution to exercise judicial review.”
The court noted that there are similar commissions in other countries including the United Kingdom, Canada and India. However, all those commissions were made pursuant to specific laws and statutes enacted for that purpose.
It adds that in Australia, the Australian Public Service Commission was established pursuant to the Public Service Act, 1999. Similarly in Canada, the Federal Accountability Act, 2006, was enacted by the Parliament for inter-alia, putting in place measures, respecting administrative transparency, oversight and accountability.
However, no public appointments commission has been created yet.
No statutory Commission has been created in Pakistan to examine the suitability of persons to be appointed to high public offices.
It appears that in light of the observations made in paragraphs 26 and 27 of the Khawaja Asif judgment, the legal authority has been vested in a commission and its recommendations are being made binding upon the prime minister, the court observed.
“It is, by now, a well settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the state.”
The judgment said the matter of the appointment of the heads of the bodies are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism.