ISLAMABAD: The federal government has decided to bring amendment to the Capital Development Authority (CDA) Ordinance 1960 and avoid legal complications arising from the appointment of the civic body’s chairman, retired Capt Mohammad Usman, and paving the way for other civil servants to be appointed members of the CDA board.

Sources in the CDA and the interior ministry told Dawn that a summary had been prepared proposing amendments to various clauses of the ordinance, which would be sent to the federal government soon.

“Yes, we are working on making amendments to the CDA ordinance,” said an officer of the interior ministry.

The sources said two civil servants, including one who was serving in Rawalpindi and had been removed in connection with the alleged Ring Road scam and later cleared in an inquiry, was also a strong candidate for the position of a CDA board member.

Under IHC 2017 judgement, board member, chairman should be hired from private sector

Under a judgement of the Islamabad High Court (IHC) passed in 2017 by Justice Athar Minallah, no civil servant can be appointed the CDA board member and chairman.

These posts should be filled from the private sector through a competitive process.

Subsequently, the interior ministry twice started the process of hiring members from the private sector but it was halted.

Meanwhile, through a presidential ordinance, some clauses of the CDA ordinance were amended to allow civil servants’ appointment in the CDA board, but the ordinance was not made a law through parliament and, as a result, the changes lapsed.

In 2018, the Pakistan Tehreek-i-Insaf (PTI) government came to power and continued the practice of the Pakistan Muslim League-Nawaz (PML-N) government, posting civil servants as members of the board.

It also gave the additional charge of the CDA chairman to the then chief commissioner Islamabad Amer Ali Ahmed on which he worked for more than three years.

Meanwhile, some private members (known as non-executive) were also made part of the CDA board through the ordinance.

However, no amendment was made to the ordinance to give legal cover to appointments made after the IHC judgement of 2017.

Before appointing the current chief commissioner Mohammad Usman as the acting CDA chairman, no amendment was made to the law.

Therefore, a lawyer recently filed a case with the IHC challenging the appointment of the commissioner as the CDA chief.

Legal experts say the CDA chairman could face serious legal complications if the ordinance was not amended, and until the amendments are made the government cannot appoint any new board member.

Former CDA legal adviser Kashif Malik said in a case regarding appointment of former mayor Sheikh Anser Aziz as the CDA chairman, the Islamabad High Court (IHC) had held that there was no provision in the ordinance for ex-officio members in the CDA ordinance.

He added that it was held in para 26 of the judgement that section 6 [of the CDA ordinance] explicitly prescribes “the criteria and conditions and when read with section 8 it leaves no ambiguity that neither can an ex-officio member be appointed nor can a person be directed to discharge the functions of the chairman of the board on a part-time basis in the absence of exceptional circumstances,” he said.

He said changes to the CDA ordinance were required by the government for appointing civil servants as the chairman and board members.

Justice Minallah in the Dec 9, 2017 judgement had ruled: “The appointment of a civil servant as member was definitely in violation of clause (f) of section 8 [of the ordinance] and an illegality committed for a long time in the past... Moreover, the appointment of a member cannot be made in violation of the principles and law enunciated in the case of statutory regulatory entities, intended by the legislature to be independent and autonomous.”

The IHC had added: “It was an obvious legislative intent and implicit in the scheme of the ordinance of 1960 that qualified and competent persons of integrity having expertise in the relevant fields were to be appointed as members of the [CDA] board.”

Sources said if Prime Minister Shehbaz Sharif’s government goes for a presidential ordinance, it could face resistance from the Presidency, therefore, the government was likely to go for legislation from parliament to remove the lacuna from the CDA ordinance.

Published in Dawn, September 10th, 2022