ISLAMABAD - The Islamabad High Court (IHC) Monday issued notices to the federation of Pakistan in a petition challenging the creation of unconstitutional ministries, divisions, institutions, schemes and programmes by the federal government on subjects of provinces and Council of Common Interest (CCI).
Justice Riaz Ahmad Khan also directed the respondents to submit their comments in this matter and adjourned the hearing with date in office.
The petition was moved by Barrister Zamir Hussain Ghumro who cited the federation of Pakistan through secretary cabinet, CCI through its chairman and prime minister, province of Balochistan through its chief secretary, province of Khyber Pakhtunkhwa through its chief secretary, province of Punjab through its chief secretary, province of Sindh through its chief secretary, Federal Minister for Water & Power, Khawaja Muhammad Asif, Federal State Minister for Water and Power, Abid Sher Ali, Federal Minister for Petroleum & Natural Resources, Shahid Khaqan Abassi, Federal State Minister for Petroleum and Natural Resources, Jam Kamal Khan, Federal Minister for Planning and Development, Ahsan Iqbal, Federal Minister for Railways, Khawaja Saad Rafique, Federal State Minister for Railways, Abdul Hakeem Baloch, Federal Minister for Ports, Kamran Michael, Federal Minister for Industries and Production, Ghulam Murtaza Jatoi, Federal Minister for Inter-provincial Coordination, Riaz Hussain Pirzada, Muhammad Baleeghur Rehman, federal minister of state for education, trainings and standards in higher education and narcotics control, Federal Information Minister, Pervez Rasheed, Usman Ibrahim, federal state minister for housing and works, Abbas Khan Afridi, federal minister for textile, Muhammad Ishaq Dar, federal minister for privatisation, Asjad Imtiaz Ali, chief executive officer, Alternative Energy Board, ministry of water and power, Chaudhry Nisar Ali Khan, federal minister for narcotics control, Sikandar Hayat Khan, federal minister for national food security, Anusha Rahman Ahmed Khan, minister of state for information technology, Pir Muhammad Amin Ul Hasnat Shah, federal state minister for religious affairs and inter-faith harmony, Muhammad Ayoob Shaikh, chairman Employees Old-Age Benefit Institution (EOBI), ministry of overseas pakistanis and human resource development, Ilyas Khan, chairman Evacuee Trust Property Board Pakistan, Enver Baig, chairman Benazir Income Support Programme (BISP), and Mariam Nawaz Sharif, chairman PM’s Youth Loan Scheme as respondents.
In his petition he informed the court that the federal government had created ministries/divisions, schemes and programmes on the subjects enumerated in the constitution for the Council of Common Interests (CCI) and provinces contrary to Articles 97, 137, 142,153, 154 and 155 of the constitution of Pakistan.
He contended that basis of any federation was division of powers and resources between the federal government and the provinces. “The constitution of our federal republic clearly divides the powers between federation and the provinces under articles 142, 97 and 137 of the constitution. It further divides subjects within the federation between cabinet and CCI under article 154 of the constitution,” he added.
However, he argued that the division of power scheme in the constitution stood violated fundamentally as the federal cabinet had encroached upon the domain of the provinces and CCI and had created unconstitutional ministries, divisions, institutions, schemes, and programmes on the subjects of provinces and CCI.
The scheme of the 1973 constitution creates two constitutional forums including the cabinet and the CCI, which both are responsible to the parliament under articles 91 (6) and article 153 (4) of the constitution, he said.
“That both the above constitutional forums have been assigned subjects which are exclusive. Cabinet has to exercise executive authority over subjects mentioned in Federal Legislative List part-I whereas CCI has been invested with exercise of executive authority over subjects enumerated in Federal Legislative List Part II,” he maintained.
The counsel said that both had not only exclusively separate jurisdiction and domain but both also had to act within their jurisdiction conferred under the constitution. However, the domain and jurisdiction of CCI has been taken over by the federal cabinet by establishing ministries on the subjects of the CCI unconstitutionally and illegally, which it is not empowered under the constitution to create in any manner whatsoever.
“That the federal government has unconstitutionally created ministries and divisions to supervise and control the subjects that are in the sole purview of the CCI and further appointed respondents 7 to 17 as federal ministers and federal state ministers in violation of article 153 and 154 of the constitution. This fact impinges directly upon the fundamental rights of every citizen as the federal republic is not being run in accordance with the provisions of the constitution,” contended the petitioner.
He told the court that the subjects included in the domain of the CCI included railways, mineral oil, natural gas, heavy industries, inter-provincial coordination, standards in higher education, national planning and economic coordination, WAPDA, ports, electricity, census, legal and medical professions, all regulatory authorities and others which clearly impinged the interests of all provinces.
“To the astonishment and surprise of the people of the Pakistan the CCI secretariat is under the administrative control of cabinet secretariat working under the federal government and thus it is neither independent nor impartial and even the agenda for the meetings of the CCI are set and tailored at the direction and wishes of the federal government,” he added.
The petitioner stated that the ministry of information which regulated newspapers, ministries of housing, textile, privatisation, narcotics control, national food security, alternate energy board, Evacuee Property Trust Board, Benazir income support programme (BISP), National Youth Loan Scheme and EOBI were not the subjects even remotely mentioned in Federal Legislative List and creation of ministries, organisations, programmes or schemes on such subjects was not only without jurisdiction but contrary to whole constitutional scheme and provincial autonomy. Social Security and Zakat both are provincial subjects hence BISP or national youth loan programmes are totally unconstitutional at the federal level, he added.
Therefore, he urged the court that respondents number 7 to 30 might be called upon to show authority under which they were holding their offices and on their failure to explain such authority of law and constitution, writs of quo warranto should be issued against them as they were holding their offices without lawful authority and in violation of the constitution.
He also requested the court that it might declare that the ministries/ divisions, institutions, projects, schemes, programmes created by federal government on the CCI and provincial subjects were unconstitutional, illegal, unlawful and against the letter and spirit of the constitution.
The petitioner further prayed that the court might restrain the respondent number 7 to 30 from performing the official functions and undertaking any major decision including privatisation of various institutions or making appointments and payments till final adjudication of this petition.