Govt places control of five regulators under ministries

• PILDAT says placing regulators under executive arms to harm transparency

The federal government has quietly placed the complete control of five regulatory bodies under the ministries/divisions concerned by awarding the federal government functions of these (regulatory) bodies to the relevant ministries.

The decision, which is also in a violation of the recent orders of the Lahore High Court and the Islamabad High Court, poses a serious challenge to the authority of the courts but also is in an utter violation of the constitution as the Council of Common Interests (CCI) has been bypassed.

The decision has attracted critique by experts and PILDAT, a parliamentary democracy watchdog. Critics say that regulators act as independent watchdogs over the functions of the ministries and their placement under the respective ministries would tantamount to be a mere joke with the constitution.

Through a notification, bearing No7-2/2016-MIN-I, the Cabinet Division issued a memorandum on June 6, 2017, stating that the federal government had placed five regulatory bodies under the ministries concerned.

According to the notification signed by Cabinet Division Joint Secretary Dr Irum A Khan, the National Electric Power Regulatory Authority (NEPRA) has been placed under the Water and Power Division; Pakistan Telecommunication Authority (PTA) has been placed under the Information Technology and Telecom Division; Frequency Allocation Board (FAB) has also been placed under the Information Technology Division; Oil and Gas Regulatory Authority (OGRA) has been placed under the Ministry of Petroleum and Natural Resources; while the Public Procurement Regulatory Authority (PEPRA) has been placed under the Finance Division.

According to the notification, necessary amendments in the rule of business 1973 will be made accordingly. The decision will also give a clear message by simply paralysing the functionality of different departments including the CCI.

It is pertinent to mention here that the subject of transfer of administrative control of the regulators was first put on the agenda of the Dec 15 meeting of the CCI, but the same was opposed in writing by the KP chief minister, who said the critical matter of public importance, having far-reaching consequences for his province, should not be decided in haste and should be withdrawn from the agenda.

Moreover, the Sindh chief minister had also objected to the proposal. The decision may also trigger civil-military tensions as institutions like PTA and FAB have a direct link to the security establishment and placing them under the ministries being held accountable by the regulators may tantamount to politicising such departments deal with very sensitive subjects.

Talking to Pakistan Today, PILDAT President Ahmed Bilal Mehboob said that since the regulators act as independent watchdogs over the functioning of the executive (ministries and divisions), placing the regulators under the executive arms of the government would actually be in conflict to the major objective of the regulators.

“Look, since the regulators are run by independent boards, they act as monitors. The regulators were a condition by the international financial institutions (IFIs) who wanted to ensure their amounts are not misused and the funds are utilised according to the allocation. But this act of placing them under the executive would jeopardise the objective and it would also harm transparency,” he added.

In December 2016, the government had also made a similar attempt wherein the administrative control of the same five regulatory bodies was placed under the ministries concerned. However, the government under the previous bid had placed only the administrative control of these regulators under the ministries. This time around, the government has placed complete control of the regulators under the ministries.

In December last, the government decision was challenged in the Lahore High Court and the Islamabad High Court simultaneously by civil society. Soon after the decision, a Senate’s standing committee had said that placing regulatory authorities under the ministries without seeking approval from the CCI was a sheer violation of the constitution while it is against the concept of regulatory authorities.

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 the Senate’s 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 the regulatory authorities should be independent and recommended that an independent CCI Secretariat shall be established on priority and all regulatory authorities established under part-II of the Federal Legislative List should be placed under the council.

In its verdict announced on Feb 21, 2017, the Lahore High Court suspended the government’s decision on the plea that the prime minister issued notification without approval of the CCI. The Islamabad High Court also set aside the decision on March 27, 2017, on same plea that decision needs approval from the CCI.

However, the federal government quietly placed the regulatory bodies in defiance of the court orders. The regulators are considered as independent institutions to ensure a strict check on functioning of the ministries with regards to safeguarding the public interests in particular and society’s interests in general.

As per Rules of Business, 1973, the regulatory bodies have been placed under the Cabinet Division to ensure neutrality and impartiality. However, placing these bodies under the ministries means that the ministries will operate without any accountability and will manipulate the decisions of the bodies.