IHC summons top official over violation of order

ISLAMABAD: The Islamabad High Court (IHC) on Tuesday summoned the secretary Cabinet Division over ‘violation’ of its order that set aside a decision placing five regulatory authorities under the administrative control of relevant ministries.

Justice Athar Minallah directed the secretary to appear along with the relevant record on August 7 after Cabinet Division Joint Secretary Dr Iram A Khan and Additional Attorney General (AAG) Afnan Karim Kundi had appeared before the court.

The AAG informed the court that a division bench had suspended the previous court order after an intra-court appeal (ICA) was filed against the decision.
Justice Minallah remarked that the order was challenged and subsequently suspended after the June 6 summary was issued whereas the Supreme Court had held that no notification could be issued without first obtaining the suspension orders from a court against an order in field.

The justice, while hearing the contempt petition, remarked that the court would not tolerate noncompliance of the court’s order.

On the previous hearing, Justice Minallah had summoned the former prime minister’s principal secretary Fawad Hasan Fawad and Cabinet Division Joint Secretary Dr Iram Khan “to explain as to why proceedings may not be initiated against them under the Contempt of Court Ordinance 2003”.

On July 18, a division bench comprising Justice Shaukat Aziz Siddiqui and Justice Mohsin Akhtar Kayani had suspended the single bench’s decision which had set aside government’s decision to place five key regulatory authorities under the administrative controls of the relevant ministries.

The division bench suspended Justice Athar Minallah’s orders passed on June 20 and March 27 while hearing an ICA of the federation.

On June 22, Justice Minallah had suspended notification of June 6 placing five regulatory authorities under the relevant ministries once again.

Previously, Justice Minallah had set aside the federal government’s decision to place five key public-oriented regulatory authorities under the very ministries against whom they were supposed to protect the consumers.

Justice Minallah had annulled the impugned notification of the government placing the Oil and Gas Regulatory Authority (Ogra), the National Electric Power Regulatory Authority, the Pakistan Telecommunication Authority, the Frequency Allocation Board and the Public Procurement Regulatory Authority under the relevant ministries.

In the previous order, Justice Minallah “unequivocally held that neither the Federation of Pakistan nor the prime minister are vested with the jurisdiction or power to interfere with or alter, change or amend Entry 53 of Clause 2 of Schedule II of the Rules of Business, 1973”.

The court order said that the rule existed prior to the issuance of the purported notification of December 19, 2016. “Despite the judgment of this court, the federal government has issued Memorandum, dated 06-06-2017,” the order read.

Justice Minallah noted that the issuance of the memorandum on June 6, “prima facie, appears to be wilful flouting and disregarding of the court’s previous judgment”.

In the March 27 judgment, Justice Minallah said: “It was ‘unambiguously’ held that action taken or notification issued by the federal government without seeking approval from the Council of Common Interests in relation to any administrative arrangement of the regulatory authorities shall be void, without jurisdiction and legal effect.

“The approval of the Council of Common Interests is mandatory for any decision regarding placement of the regulatory authorities under Ministries/Divisions,” Justice Minallah stated.

“Needless to mention,” he added that the memorandum of June 6 is void and a nullity in the light of the law enunciated by the court in the March 27 order.

The order came in response to a citizen’s contempt petition against the federal government functionaries in the IHC over non-implementation of its order, under which the decision of placing five regulatory authorities under the relevant ministries had been set aside.

Muhammad Nawaz, a worker of the Pakistan Justice and Democratic Party, approached the court seeking contempt proceedings against the principal secretary to the former prime minister and the federation through the joint secretary of the Cabinet Division for not implementing a previous decision of the IHC.

The petitioner said he had come to know that the respondents had re-issued the notification with a slight change in the wording with the same subject – control and supervision of the independent regulatory bodies – without any decision, approval or consent of the Council of Common Interests.

“No decision or approval of the CCI has been obtained by the respondents as is required under the Constitution and the order of this court,” the counsel stated in the petition.

He requested the court to initiate proceedings against the respondents; and operation and effect of ‘contemptuous notification’ issued on June 6 may be suspended till the conclusion of the contempt proceedings and punishment of the ‘delinquent’.

He also requested the court to issue a compliance order of its earlier judgment in its true letter and spirit.

Source: The Express Tribune