President Dr Arif Alvi issued a new ordinance on Thursday to create a Privatisation Appellate Tribunal, which would take over the functions of high courts in privatisation matters. The ordinance aims to avoid delays in selling state assets and settle disputes quickly.
The presidency issued a statement saying that the president issued the Privatisation Commission (Amendment) Ordinance 2023, which amended the Privatisation Commission Ordinance of 2000 from Section 28 to Section 33.
Sections 30 and 33 of the Privatisation Commission Ordinance 2000 were repealed through the new ordinance. The president issued the ordinance under Article 89-1 of the Constitution.
The interim federal government decided to introduce the legislation after the Lahore High Court (LHC) accepted a petition challenging the planned privatisation of Pakistan International Airlines (PIA).
The purpose of the new ordinance was to eliminate unnecessary delays in privatisation, resolve issues and ensure compliance with the principles of law and justice, the presidency said.
The ordinance came after Privatisation Minister Fawad Hasan Fawad met with the president on Tuesday and explained the need for the ad hoc legislation. Fawad said that the ordinance would provide investors the confidence to invest with the understanding that there would be only one forum to redress any legal issues arising out of any transaction with an appeal to the Supreme Court.
According to the presidency, the Privatisation Appellate Tribunal would have jurisdiction to hear and adjudicate civil and criminal matters relating to privatisation. The powers given to high courts in the Privatisation Commission Ordinance 2000 were now transferred to the Privatisation Appellate Tribunal.
The new ad hoc law states “no court other than the Privatisation Appellate Tribunal constituted under this (new) ordinance, hereinafter called as the Appellate Tribunal, shall exercise jurisdiction under this ordinance”.
The Appellate Tribunal would have the same powers as a civil court or a criminal court trying a suit or case under the Code of Civil Procedure 1908 or the Code of Criminal Procedure 1898.
The Appellate Tribunal would have the authority to summon and enforce the attendance of any person and examine him on oath; requiring the discovery and production of documents and material objects; receiving evidence on affidavits; and issuing commissions for examination of witnesses and documents.
President Alvi made one change in the draft that had been approved by the federal cabinet. He passed the amended ordinance proposed by the government after changing Section 28. The president changed the proposed government ordinance to appoint a retired judge of the Supreme Court instead of a retired judge of the high court as the chairperson of the Appellate Tribunal.
Under the ordinance, a retired judge of the Supreme Court would be the chairperson of the Privatisation Tribunal. The Appellate Tribunal would have one technical member and one judicial member. The Supreme Court would have the power to hear appeals against the decisions of the Appellate Tribunal.
The newly inserted section states “any person aggrieved by an order of the Appellate Tribunal may within 60 days thereof prefer an appeal to the Supreme Court.”
The government approved the transfer of all cases pending before high courts to the proposed Appellate Tribunal.
The federal government would have the authority to remove the chairperson or a member of the Appellate Tribunal on the ground of physical or mental incapacity or misconduct, after giving a notice of not less than 30 days and an opportunity of being heard.
The government made the ad hoc legislation effective from the year 2000.
The life of a presidential ordinance is only 120 days and it can be extended by another 120 days by the National Assembly.
Before the ordinance, all high courts had concurrent jurisdiction over privatisation cases. Under the ordinance, the federal government would establish a three-member Privatisation Appellate Tribunal.
On December 8, Profit reported that the federal cabinet had approved the issuance of the Privatisation Commission (Amendment) Ordinance 2023 to ensure the privatisation of government assets, including PIA.
The cabinet had decided to end the role of the high courts and other courts against privatisation and to establish the Appellate Tribunal to hear the petitions filed or to be filed against privatisation.
The cabinet also decided that after the issuance of the ordinance, the decision of the Privatisation Commission Appellate Tribunal could only be challenged in the Supreme Court, while the cases pending in high courts and other courts across the country would be transferred to the Appellate Tribunal.
The Appellate Tribunal was established on the request of domestic and foreign investors. The privatisation process had been badly affected by the filing of cases in various courts.
Prior to the ordinance, privatisation cases fell under the concurrent jurisdiction of all high courts. However, the ordinance introduced the establishment of a three-member Privatisation Appellate Tribunal by the federal government.