In a significant development, the federal caretaker government in Pakistan has decided to issue a presidential ordinance to prevent constitutionally-established high courts from hearing cases related to the privatization of national assets.
This decision comes in response to a petition challenging the proposed privatization of Pakistan International Airlines (PIA) that was admitted by the Lahore High Court (LHC). The interim government has approved the draft of the Privatisation Commission (Amendment) Ordinance, 2023, aiming to establish a Privatisation Appellate Tribunal as the sole forum for addressing legal issues arising from privatization transactions.
The move has raised concerns about the government’s authority to restrict the powers of high courts established under the Constitution, especially when no privatization transaction is currently tied to any international agreement. The caretaker government argues that the ordinance aims to provide investors with confidence by streamlining legal processes and creating a singular forum for dispute resolution, with an appeal option to the Supreme Court.
Interim Privatisation Minister Fawad Hasan Fawad highlighted that the Privatisation Appellate Tribunal would expedite the resolution of cases pending for decades. The ordinance grants the federal government the authority to remove the chairperson of the appellate tribunal, a departure from the tenure security of serving high court judges. The legislation, effective from the year 2000, may face legal challenges due to retrospective implementation.
Constitutional expert Salman Akram Raja expressed skepticism about limiting the power of high courts and suggested that the existence of the appellate tribunal might dissuade high courts from entertaining writ petitions. Despite concerns, the caretaker government justifies the ordinance as a necessary step to address longstanding legal issues and provide a dedicated forum for privatization-related matters.
