The Sup-reme Court Wednesday directed the federal government to constitute National Electric Power Regulatory Authority (NEPRA) within one month. A three-judge bench headed by Chief Justice Mian Saqib Nisar was hearing Anwar Kamal's application for impleading party. The court said if the NEPRA is not completed within one month then Power and Energy secretary would have to appear in person to explain why the authority is not complete.
Anwar Kamal Advocate filed the petition under the Order XXVI Rules 1 & 6 and Order XXXIII of the Supreme Court Rules to file review on the apex court judgment dated 08-12-2015. In his application he disputed the constitution, composition and functioning of the NEPRA, established under the provisions of the Regulation of Generation, Transmission and Distribution of Electric Power Act 1997 (NEPRA Act, 1997).
He contended that after the 18th amendment, the matters pertaining to regulatory bodies were required to be viewed with a fresh approach by the superior courts.
He stated that the judgment (08-12-2015) sought to be reviewed has negatively transformed the regulatory framework prevalent in Pakistan, and has resultantly adversely affected and endangered the fundamental rights of the applicant, as well as the people of Pakistan, guaranteed under the Constitution particularly right to life.
It is submitted that while rendering the judgment on 08.12.2015, the court did not advert judgments, including the PLD 2012 SC 132, PLD 2013 SC 244, 2013 SCMR 1159, 2014 SCMR 220 and HR Case No.14392 of 2013.
He stated that the establishment, constitution and functioning of the NEPRA affects the life of every Pakistani, whether he or she be a consumer of electricity or not.
Anwar Kamal stated that year 1997 marked a paradigm shift in the electric power sector in Pakistan as the concept of regulation through an independent statutory regulatory body was introduced through the NEPRA Act, 1997. This statutory authority was, inter alia, mandated to protect the interests of consumers and companies providing electric power services, as the Section 7(6) of the NEPRA Act, 1997 refers.
Anwar Kamal stated that in 2010, a further significant shift occurred through the 18th constitutional amendment when the concurrent legislative list was omitted; the subject of 'electricity' was inserted as entry-4 and the subject "All regulatory authorities established under a federal law" inserted as entry-6 in Part-II of the federal legislative list.
He said at the time of the promulgation of the NEPRA Act, the NEPRA was envisaged by the legislature as a body that would represent the federation and each of the four provinces. This objective of fiscal federalism was achieved by virtue of the provisions of Section 3 of the NEPRA Act, 1997 dealing with the establishment of the authority.
The provincial representation and participation is the heart and soul of federalism and is further augmented by the provisions of Sections 3(2) and 6 of the Act which require that there shall be a vice-chairman of the authority, appointed from amongst the members for a period of one year, by rotation, and its members will from all the four provinces.
He submitted that rules for seeking nominations of members from the provincial governments have not been framed till date. In view of the increasing role of the private sector in the generation of electricity and the proposed privatisation of state-owned Distribution Companies (DISCOs), it is of utmost importance that the NEPRA should work as an independent regulator in accordance with the guidelines, not inconsistent with the provisions of the NEPRA Act, 1997.
The Chief Justice after hearing him dismissed the petition saying he has no locus stand.
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