Transfer of regulatory bodies to ministries challenged in SHC

The federal government’s notification with respect to transferring the administrative control of five regulatory authorities to their relevant ministries was on Monday challenged in the Sindh High Court (SHC).

Petitioner Wahab Baloch submitted in the petition that the federal government through its notification, issued on December 19, ordered shifting the administrative control of five autonomous and independent regulatory bodies.

The bodies included the National Electric Power Regulatory Authority (Nepra), Oil and Gas Regulatory Authority (Ogra), Pakistan Telecommunication Authority (PTA), Public Procurement Regulatory Authority (PPRA) and Frequency Allocation Board (FAB) to the concerned ministries whose activities and functions were supposed to monitor and regulate under the law.

He submitted that the statutory regulatory bodies were established to promote fair competition and investment in their respective fields and protect the public interest and rights of the consumers.

The petition further maintained that they were meant to be autonomous and free from political influences, unbridled bureaucratic and direct governmental control.

He submitted that pursuant to Article 153 of the constitution, a Council of Common Interest (CCI) was established and Article 154 (1), as amended, provided that the council shall formulate and regulate policies in relation to matters in part II of the federal legislative list and shall exercise supervision and control over related institutions.

He submitted that under part II of the federal legislative list enumerated in the fourth schedule of the constitution, entries 2, 3 and 4 related to gas, petroleum and electricity and were matters exclusively to be controlled and regulated by the CCI, while entry No.6 left no doubt about the control and supervision of the aforementioned regulatory bodies.

It had already been stipulated through the laws that all regulatory authorities established under a federal law shall be under the domain of the CCI in relation to formulation of their policies and exercise of control and supervision thereof.

The petitioner submitted that the constitutional mandate had clearly been violated through the impugned actions of the cabinet division’s notification purporting to give the statutory regulatory bodies under the control and supervision of the ministries and, therefore, were without any lawful authority and as such were of no legal effect.

Baloch further submitted that the government through its ministry of petroleum had also allowed the compressed natural gas stations’ retailers to fix their own prices rather than fixing the selling prices, hitherto fixed by the regulatory body.

He apprehended that the same would be the case for electricity, domestic gas supplies and telephone services, while the ordinary consumer would be left at the mercy of big business concerns and multinational companies to make an undue and unjustified profit out of, without being accountable or subjected to regulatory control. Thus, the very object of establishing these regulatory authorities stood defeated.

He mentioned that as a result of such de-regulation, owners of CNG stations in Sindh had already increased their prices by almost Rs4 per kilogram, leaving public transport users to bear the brunt of this unlawful increase and arbitrary fixation of prices with no overview by the regulator - OGRA - because of the direct and unconstitutional blow of the federal government’s cabinet division.

No less than 70 percent of the public transport used CNG in Karachi only, and the detrimental effect on the daily lives of ordinary citizens could very well be imagined.

The court was requested to declare the impugned notification regarding transferring the administrative control of the regulatory authorities as unlawful as it violated the constitutional provisions.

Besides the notification allowing the CNG retailers to fix their selling prices rather than OGRA may also be declared unconstitutional and ultravires of the law.