In a significant development, the federal caretaker government has issued a presidential ordinance to stop constitutionally established high courts from entertaining any case related to the privatisation of Pakistan’s assets. The caretaker government, whose extended tenure is set to end in February next year, has taken the drastic step a month after the Lahore High Court (LHC) admitted a petition challenging the proposed privatisation of the Pakistan International Airlines (PIA), the national flag carrier.
The caretaker federal cabinet has approved the draft of the Privatisation Commission (Amendment) Ordinance, 2023, which would be promulgated anytime by President Dr Arif Alvi, according to the sources in the Ministry of Privatisation. However, the radical step by the interim government raises many questions about its authority to limit the powers of the high courts established under the Constitution, mainly when no privatisation transaction is currently linked with any international agreement.
Interim Privatisation Minister Fawad Hasan Fawad has confirmed that the cabinet has approved the Privatisation Commission Amendment Ordinance 2023. Fawad said: “[The] purpose of the Ordinance is to provide investors the confidence to invest with the understanding that instead of a multiplicity of litigations around the country, there would be only one forum to redress any legal issues arising out of any transaction with an appeal to the Supreme Court”.
The minister had been requested to comment on the reasons for issuing the ordinance when no privatisation transaction is linked with any international loan agreement, nor is there any emergency that may empower the caretaker government to take such a drastic step. But Fawad said the decision to establish the Privatisation Appellate Tribunal “provides a singular forum for disposal of cases arising out of any privatisation transaction”.
The PIA privatisation remains the topmost priority of Fawad, who has already been empowered by withdrawing the authority of Finance Minister Dr Shamshad Akhtar to chair the Cabinet Committee on Privatisation meetings. The PIA privatisation process needs to be faster, although the government has bypassed the international competitive bidding process to hire financial advisers.
The interim cabinet has approved amending Section 28 of the original 2000 Privatisation Ordinance, which described the high courts’ functions to hear civil and criminal cases related to any privatisation transaction. The new ad-hoc law states that “no court other than the Privatization Appellate Tribunal constituted under this (new) Ordinance, from now on called the Appellate Tribunal, shall exercise jurisdiction under this Ordinance”.
The life of a presidential ordinance is only 120 days and can be further extended by another 120 days by the National Assembly. The original but to be repealed Section 28 stated that “the High Court shall exercise exclusive civil and criminal jurisdiction to adjudicate and settle all matters related to, arising from or under or in connection with this Ordinance; to adjudicate and settle all matters transferred it; and to try offences punishable”.
The minister said the ordinance, as approved by the federal cabinet, provides the Privatisation Appellate Tribunal with the jurisdiction to hear and decide civil and criminal matters. Last month, the LHC issued notices to the caretakers regarding a petition challenging the proposed privatisation of the PIA.
Justice Raheel Kamran Sheikh observed that the petition challenging the PIA privatisation raised questions of public importance involving constitutional law. The petitioner had pleaded before the provincial court that the caretaker government had no jurisdiction to privatise PIA, considering its limited scope and authority.
