SC orders govt to stop donning ‘competent authority’ cloak

[ghazi52]

SC orders govt to stop donning ‘competent authority’ cloak​

Eight-page judgment authored by Justice Isa directs disclosing designation and name of person instead


Hasnaat Malik
January 24, 2022

A file photo of the Supreme Court of Pakistan.

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ISLAMABAD: The Supreme Court has stopped all state functionaries from using the word "competent authority" in any kind of official correspondence/notifications.

"We are also convinced that there is a need to put a stop to the use of the illusive and elusive term – the competent authority -- without the disclosure of the competent authority’s designation and name,” says an eight-page judgment authored by Justice Qazi Faez Isa while hearing a service matter.

A division bench of the apex court led by Justice Isa directed the governments of Sindh, Balochistan, Khyber-Pakhtunkhwa, Punjab, the government of Pakistan, registrars of the Supreme Court and all high courts, and through the Registrars of the High Courts all District and Sessions courts to issue requisite orders/directions that they and their respective functionaries, semi-government and statutory organisations whenever issuing notifications, orders, office memorandums, instructions, letters and other communications must disclose the designation and the name of the person issuing the same.

The move deemed necessary to ensure that it is issued by one who is legally authorised to do so, and which will ensure that such person remains accountable. "Copies of this judgment be sent to the secretary, Establishment Division, the Government of Pakistan, to the chief secretaries of the provinces, to the head of the Islamabad Capital Territory, registrars of the Supreme Court and all high courts who are directed to issue requisite orders/directions and to publish the same in their respective gazettes or ask the concerned government to do so.

Compliance report be submitted for our consideration in chamber by or before March 1, 2022, says the judgment. The court observed that the use of vague and imprecise language, such as, the competent authority, in legal matters is an anathema and oftentimes results in avoidable disputes, which unnecessarily consume time and public resources.

“The use of accurate and precise language helps avoid disputes. Using the term the competent authority but without disclosing such person’s designation and name is against public policy and also against the public interest since it facilitates illegalities to be committed and protects those committing them.

“Every functionary of the government, and everyone else paid out of the public exchequer, serves the people of Pakistan; positions of trust cannot be misused to appoint one’s own or to illegally exercise power,” says the order.

The court said that whenever the Constitution grants power to an individual it mentions the person’s position/designation, for instance the president, the prime minister, the chief justice, the governor, et cetera.

"The same also holds true with regard to Federal and provincial laws, including the cited laws and to the governments’ rules of business. It is an individual who holds a particular position and by virtue of such position exercises power."

"Merely mentioning the competent authority without disclosing the designation and name of the person who is supposed to be the competent authority is utterly meaningless."

The court noted that non-disclosure serves to obfuscate and enables illegalities to be committed. The court said that even in this case the secretary was not authorised to appoint the respondent but managed to do so by donning the competent authority cloak.

"We are not at all persuaded by the contention of the respondent’s counsel that the respondent should not be penalised for the illegalities committed by the department. The respondent was illegally selected and appointed by the secretary and his selection/appointment is not sustainable nor is it such a minor transgression that it could be condoned."

The court also observed that the secretary in concealing his designation and name, and by not disclosing that he was the competent authority, succeeded in appointing the respondent.

"The secretary issued the notification which shielded himself in the anonymous cloak of the competent authority and one which also concealed his connection with the respondent," says the order.