KARACHI: The Sindh High Court declared the grant of ministerial portfolio to Sindh chief minister’s adviser on law Barrister Murtaza Wahab as illegal on Tuesday.
It held that the executive powers which the elected representatives can exercise only cannot be given to the advisers.
A division bench headed by Justice Sajjad Ali Shah announced its verdict declaring the appointment of Murtaza Wahab as the adviser to the Sindh CM as void and of no legal standing.
The bench pronounced its verdict on the petition of Advocate Fareed Ahmed Dayo, who had challenged Wahab’s appointment and his ministerial portfolio.
The 27-page long judgment authored by the CJ said that there are terms and conditions provided in the Constitution for the advisers to be appointed by the prime ministers, however, there are no rules at all for the appointment of advisers to the chief minister.”
The judgment said that the day Murtaza Wahab was appointed he was simultaneously given the executive authority of the minister law and other departments, which means that he was never appointed as an adviser in fact. Therefore his appointment was not of an adviser; rather the constitutional frame work was skewed to pass on the executive authority held by the CM.
“His appointment as the adviser on law being devoid of purpose and intent as envisaged by the Constitution and as well as being superfluous on the ground that the advocate general is the person competent for the job, we declare the appointment void and of no legal effect.”
Responding to the Sindh CM’s lawyer’s contention that the Constitution is absolutely silent as to the criteria or qualification for the appointment of advisers to the extent that a milkman can be appointment as an adviser, the court said ,apex court has laid down the principle that the CM, under his constitutional dispensation, is neither a King nor a Monarch, but is in the domain of trust and is obliged to obey the Constitution and law any like another ordinary citizen.
“His discretion is neither brazen nor arbitrary but is subject to the Constitution, since he has taken oath to discharge his duties in accordance with the Constitution of Pakistan.”
Such an appointment should at least have attracted the general principles of probity and good governance in absence of eligibility, criteria and qualification for appointment of an adviser, the judges questioned in the verdict.
“Probity and good governance demanded that the adviser has to fulfill the intent and purposes for which he is appointment.”
They noted that the appointment of the advisers under Article 130(11) does not leave it open to the CM to appoint any person as adviser who does not fulfill the intent or purpose.
Whenever a person is appointed (who is not a public representative) and his remuneration and allied expenses are paid from the public exchequer, it becomes very important that the authority which is handpicking the individual has to ensure that his or her selection fits every bit of the purposes and intents, said the order. “The rule of right person for the right job has become evident”
Whenever, the constitution gives authority to the federal government or provincial government, it envisages that such executive authority will be exercised by the prime minister and chief minister through their ministers.
The order said that the Rule 6(ii) and 7(ii) of Sindh Government Rules of Business 1986 are in direct conflict with the scheme of democratic government as enshrined by the Constitution where right to exercise of the executive authority is solely given to the elected representatives. “However, both the rules have given authority to the CM to delegate exercise of the executive authority unto his advisers, for which there is no room in a democratic setup, or in the Constitution.”
“Therefore, in our considered view the Rule 6(ii) and the Rule 7(ii) to the extent of delegation of powers to the advisers are ultra vires of the constitution, thus void and of no legal effect,” the court ruled
The court also declared the appointment of Murtaza Wahab as the chairman of the Board of Governors of Law Colleges in Karachi without merit, illegal and void.
It also held that the Section 11 (1) of the Shaheed Zulifqar Ali Bhutto University of Law Act 2012, provided that minister for law and parliamentary affairs acts as the pro vice chancellor of the university. Murtaza Wahab, who was an adviser, could not be given the executive authority to act as the minister. Therefore, he also seizes to be the pro VC of the university.