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January 26, 2021

Staving off a bumpy course: Govt avoids locking horns with superior courts on judicial orders

National

January 26, 2021

ISLAMABAD: Prime Minister Imran Khan has constantly avoided locking horns with the superior courts by accepting their orders and judgments against the government’s decisions and actions.

The latest example came when the premier rescinded the notification of the appointment of Naeem Bokhari, his lawyer in the Panama case against former Prime Minister Nawaz Sharif, as the Pakistan Television (PTV) chairman.

Islamabad High Court (IHC) Chief Justice Athar Minallah had not declared void Bokhari’s selection but had just restrained him from continuing as the PTV chairman. The judge had sent the matter to the federal cabinet to take a decision in the light of a 2018 Supreme Court judgment, which had held that there needed to be a clear reason for relaxing the upper age limit of 65 for appointments in the government. The federal cabinet did not make a clear decision on relaxing the age limit in this case nor was a correct summary sent to it, the top judge observed. “No one is above the law. The court does not typically interfere in the executive's decisions.”

Without waiting for the nomination to be scrapped, the federal cabinet, obviously at the bidding of the prime minister, reversed the appointment and thus Bokhari’s stint as the PTV chairman turned out to be very short-lived.

This is not the only decision that the prime minister has taken after the IHC’s intervention. There are a number of instances where he accepted the court’s judgments on key appointments, removals and other actions.

In November, another issue involving the courts came up. The federal government withdrew the notification suspending Islamabad Metropolitan Corporation Mayor Sheikh Ansar after the IHC pointed out grave flaws in the order and sought a reply from the federal government. The IHC had disposed of the petition after it was informed that the government had taken back the notification.

In November 2019, the IHC had suspended the presidential notification appointing two members of the Election Commission of Pakistan (ECP) and directed that the matter be resolved by parliament. Chief Justice Athar Minallah said that the matter should be sorted out quickly as the incumbent Chief Election Commissioner [Sardar Muhammad Raza] was about to retire. "Resolve this matter before December 7 and tell the court,” the IHC ordered.

The controversial and unilateral appointments of ECP members from Sindh and Balochistan were made by President Dr Arif Alvi without consulting the leader of the opposition in the National Assembly. Sardar Raza had also refused to administer the oath to both members-designate and written a letter to the law ministry, saying that the appointments were not in accordance with the relevant articles of the Constitution. Following the judge’s directions, the government started the process of nominating replacements, which were made after some time, and the matter was resolved amicably.

The government had also withdrawn another notification that had removed Karachi Port Trust (KPT) Chairman Jamil Akhtar. After he was removed, the IHC disposed of the petition. The attorney general had informed the court that he had minutely examined the case and in his opinion the notification was not correct. If the KPTI chairman is accused of any misconduct, a transparent investigation should have been carried out first.

Justice Athar Minallah had also expressed displeasure over the suspension of the licences of 262 pilots of the Pakistan International Airlines (PIA). The attorney general told the court that negligence was committed while suspending the licence of pilot Saqlain Akhtar, the petitioner. He said he had told the aviation secretary to make public the names of those who possessed fake licences and admitted that the charge of the aviation secretary and Civil Aviation Authority director general should not be with one person.

In September 2019, the IHC had restored Mushtaq Ahmed Sukhera as the Federal Tax Ombudsman (FTO), declaring the federal law ministry’s notification for his removal against the law. The FTO, appointed in August 2018 for a period of four years, had been sent home in June. Sukhera later opted for a voluntary exit.

When the IHC ruled that 21 advisers and special assistants to the prime minister cannot head or be members of any cabinet committee and are barred from exercising any executive powers, the government removed all of them from such positions. It was held by the court that the advisers and special assistants can hold these positions only to enjoy certain perks and privileges while they cannot have any powers whatsoever in the ministries and divisions that they can't preside over.

However, there are exceptions to this tendency to bow before court judgments. The federal government has long been searching for a mechanism to implement at all costs its plan of replacing the Pakistan Medical & Dental Council (PM&DC), despite various orders from the IHC and decisions of the Senate. The ordinance providing for the Pakistan Medical Commission (PMC) in place of the PM&DC had been trashed by the IHC, restoring the dissolved PM&DC and disbanding the PMC. The move had also once been censured by the Senate through a resolution and rejected on another occasion through a vote.

However, after some time the federal government once again promulgated the ordinance, which was hurriedly passed and converted into an act during the joint parliament session which the opposition parties had boycotted. The sitting had in fact been convened to pass bills relating to the Financial Action Task Force (FATF) but finding the opposition absent from the proceedings, the government thought it opportune to approve some other laws as well. Once again, the establishment of the PMC has been challenged in the IHC, which, in its preliminary hearing, viewed the official move with disapproval. However, the court decision on the issue is yet to come.