The Islamabad High Court (IHC) Thursday declared the appointments of the chairperson and two members of the Competition Commission of Pakistan (CCP) as illegal.
A division bench of the IHC comprising Chief Justice Athar Minallah and Justice Aamer Farooq issued this verdict after hearing of the government's Intra-Court Appeal (ICA) against a single bench's judgment regarding restoration of Vadiyya Khalil as chairperson of the CCP and its two members including Dr Muhammad Saleem and Dr Shahzad Ansar.
Earlier, a single bench of IHC comprising Justice Miangul Hassan Aurangzeb had set aside the termination orders of the chairperson and members of the CCP. The chairperson, Vadiyya and the members of the CCP had challenged their removal by the federal government.
The federal government on October 15, 2018 had ordered the removal of the chairperson and members of the CCP.
Later, the Federation of Pakistan filed an ICA assailing judgment, dated February 03, 2020, passed by a single bench of the IHC.
The judgment said that the admitted facts are that Respondent no 1 (Vadiyya) was appointed as member and later chairperson of the CCP in 2014 for a fixed term of three years.
On expiry of her fixed term, she was reappointed for another term of three years vide notification, dated December 17, 2017.
Respondent no 2 and respondent no 3 were appointed as members of the CCP vide notification, dated December 14, 2017.
It noted after examining the constitutional provisions and the historical background in great detail the august Supreme Court, inter-alia, concluded by declaring and holding as follows: "(ii) The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers." "(iii) Neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law.
Similarly, budgetary expenditure, or discretionary governmental expenditure can only be authorized by the Federal Government i.e. the Cabinet, and not the prime minister on his own.
"(vi) Rule 16(2) which apparently enables the prime minister to bypass the Cabinet is ultra vires and is so declared."
The bench added that it is obvious from the above enunciation of law that the powers vested in the federal government can only be exercised by the federal cabinet, consisting of the prime minister and the federal ministers.
The federal government, ie, the prime minister and federal ministers collectively, cannot delegate the power vested under a statute to an officer, minister or even the prime minister because no such power exists for doing so.
Such purported delegation, and decisions taken pursuant thereto, would be constitutionally invalid and a nullity in law.
According to the judgment, the Federal Cabinet cannot be by passed in the case of powers vested in and exercisable by the Federal Government. The purported delegation, vide decisions taken by the Federal Cabinet in its meetings held on 02.11.2016 and 07.02.2017, were thus without lawful authority and jurisdiction and hence constitutionally invalid. It appears that after realizing the proper appreciation of the law laid down by the august Supreme Court, except for a few decisions, the said purported decisions were not acted upon.
The IHC bench maintained, "For the above reasons we have no doubt in our minds that the reappointment of Respondent no. 1 as Member and Chairperson and the initial appointments of Respondent no. 2 and Respondent no. 3 were not made by the Federal Government as explicitly provided under the Act of 2010 and, therefore, they were without jurisdiction, void and non-est."
It added, "However, the acts done or orders passed during the interim period i.e. from the time of the purported appointments till the rendering of this judgment, shall be protected under the de facto doctrine."
It continued, "This appeal is, therefore, allowed and, consequently, the judgment, dated 03.02.2020, is hereby set aside. Keeping in view the importance of the CCP, the Federal Government is expected and directed to fill the vacant positions through a transparent process at the earliest, preferably within thirty days from the date of receiving a certified copy of this judgment."
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