Decision on regulators termed violation of constitution

A Senate panel on Tuesday said that placing regulatory authorities under the line ministries without seeking approval from Council of Common Interests (CCI) is sheer violation of the Constitution while it is against the concept of regulatory authorities.
Prime Minister Nawaz Sharif has placed five regulatory bodies under the line ministries with a stroke of pen last year without raising the issue in the CCI meeting, which is mandatory under the Constitution. After the regulatory bodies were placed under the line ministries, the issue was taken up in Senate by the opposition, and the issue was referred to Senate Functional Committee on Devolution headed by Mir Kabir, which submitted its report to the House, declaring the decision a willful attempt to trample the 'very concept of oversight.'
The report said that regulatory authorities should be independent and recommended that an independent permanent Secretariat of CCI shall be established on priority and all regulatory authorities established under part-II of Federal Legislative List should be placed under the Council.
"The devolution shall be a permanent agenda item in every meeting of CCI," it added.
The committee also heard the heads of all the five regulatory bodies who, according to the report, showed no spine in challenging the government's decision.
The heads of all the five regulatory bodies - National Electric Power Regulatory Authority (Nepra), Oil and Gas Regulatory Authority (Ogra), Pakistan Telecommunication Authority (PTA), Frequency Allocation Board (FAB) and Telecom Division, and Public Procurement Regulatory Authority (PPRA) - had nothing to say except saying the lines ministries are the major stakeholders.
The secretary cabinet division skipped the meeting, and an additional secretary told the panel the transfer of the regulatory bodies was made in accordance with the Rules of Business, 1973. As per proviso to the rule 3 (3) of the Rules of Business 1973, distribution of business of the divisions may he modified from time to time by the prime minister.
The Cabinet Division took the plea that Article 154 is not relevant to the transfer of regulatory authorities in the instant case as it does not relate to change in policy but is an administrative measure which is within the ambit of the prime minister.
Additional Secretary Cabinet Division told the panel that regulatory authorities recently transferred from Cabinet Division to line ministries/divisions were either working under a certain ministry/division including their line ministry / division prior to their placement under the Cabinet Division.
For example, Nepra was established in 1995 under line ministry ie Ministry of Water & Power. Similarly, PTA was also constituted in 1996 under the line ministry, the then Ministry of Communication. Thereafter, PTA was transferred to another line ministry ie Ministry of Information & Technology; Gas Regulatory Authority, now Ogra, was originally established under the Ministry of Petroleum & Natural Resources. The PPRA was also originally established under Finance Division in 2002 and thereafter was transferred to Cabinet Division in 2005.
In all the previous cases, administrative control of regulatory authorities was transferred by the executive by invoking rule 3 (3) of the Rules of Business, 1973 and not even in a single case was it referred to the Council of Common Interests. The chairman of the committee remarked that the creation of a permanent CCI Secretariat would enable the forum to play its constitutional role effectively and there is dire need to act seriously in this regard.
Senator Sassui Palijo observed that the decision is against the spirit of the Constitution and the government should review this process. She said that deliberate attempts are being made to undermine the true spirit of the I8th Constitution Amendment and the Parliament was kept in the dark. Senator Ilyas Ahmad Bilour stated that people have rendered sacrifices and vowed to stop every move aimed at rolling back the 18th Amendment.
The committee noted that no proper trail is available that is why the item was placed on the agenda of CCI and then it was taken away; directions of the Competent Authority in this regard are missing, therefore, it can be safely concluded that the said agenda item was taken out on the observations of Khyber Pakhtunkhwa, which can be corroborated with the letter of Chief Minister Khyber Pakhtunkhwa, dated 13th December, 2016.
The committee also took note of Article 154 of the Constitution, which provides 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" and inquired whether a policy decision regarding the placement of regulatory authorities under the line ministries can be taken without seeking prior approval from the CCI.