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Introduction

Pakistan’s civil service has been notorious for corruption, falling standards of merit and improper governance
structure since Pakistan’s formation. However with time it is claimed by many people that service reforms
introduced by the politicians of the newly made country have worsened the effective institutionalism of the
Bureaucracy left by British systematic heritage. Has the political oversight of the policy and excessive judicial
review of the Bureaucracy corrupted the merit and faith of the civil servants?

While Pakistan does practice a certain separation of powers, all three branches are often seen as
underperforming. The legislature is slow to update colonial era laws or pass new legislation. The judiciary takes
too many cases and is overburdened by a backlog. The civil service is unresponsive to citizen concerns and
riddled with low level bribery for basic services

Is it right to blame the sub performance of executive to excessive legislative oversight or a failure of legislative
or a failure of judicial oversight? Adding to the problem, judicial caseload from private disputes to public action
have abused the use of Article 199 and 184(3).

In this paper, I am going to analyze Oil and Gas Regulatory Agency of the Pakistan and check the cases of
Supreme and High Court to analyze whether Judiciary has done excessive oversight or not.

Administrative Action

The administrative authority in its conduct shall be judged on the following core principles

1) Reasonableness towards the “public interest”

2) Rationality as in the rational utility maximization nature.

3) Lawfulness as to obey the statues and laws

4) Arbitrariness as the discretionary power should be objective and without any personal whims

5) “Procedural Fairness” with transparency and good faith

6) Discrimination in protection of Article 27(1)

7) Bias/Impartiality

8) Independences in free from the external influences.

9) Mala Fide that is not done in bad faith

10) “Fundamental Rights section” of the constitution to be protected

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“The executive bodies have subordinated legislative power granted from their statue which is conferred power
by the primary legislation of the legislature”. The executive bodies have executive actions, quasi-judicial and
quasi legislative powers of rulemaking, rule applying and decision making. Their executive action can be
challenged on grounds of the test of lawfulness mentioned above or when their discretionary power is limited in
statue.

Today, the bureaucracy is constitutionalized under Article 240, which appears to give the legislature control over both the
appointment and the "conditions of service" of bureaucrats. The legislature controls regulators through enabling statutes,
the prime minister and cabinet, the Rules of Business, the power over the budget, civil service reform commissions
(including the recent National Commission on Government Reform), and the public accounts committee of the national
assembly.

The judiciary controls regulators through Article 199, Article 184(3), the NAB courts, judge-made doctrines of fairness
and process, etc, and the ombudsman (a quasi-judicial political appointee). As these tools for control suggest, legislative
control is broad, policy-level control, aimed at giving general directions to the bureaucracy; judicial control is more
specific and case by case, taking up particular administrative appointments or actions.

Both kinds of control can be beneficial or harmful, depending on the relative strengths and weaknesses of the overseers
versus the bureaucracy. For example, broad, policy-level control comes from the legislature because it is better situated to
deliberate, make deals, and listen to constituencies. Yet, the legislature may fail to exercise such control, either for short-
term electoral gains or to patronize a civil service that may help it maintain or grow its power. Case by case control comes
from the judiciary because it is better suited to hearing and investigating complaints through litigation. However, the
judiciary may fail to exercise oversight because it does not understand the wider policy implications or the practical
constraints of the civil service.

Jurisdiction of Supreme Court

The constitution of Pakistan gives three types of jurisdictions to the Supreme Court of Pakistan.

1) Original Jurisdiction conferred by article 184.

2) Appellate Jurisdiction conferred by article 185 whereby court reviews the judgements given by the lower
courts.

3) Advisory Jurisdiction conferred by article 186 in which Supreme Court has been given power to transfer
cases from High Court.

The Article 184, enables Supreme Court to solve disputes between Federal and Provincial governments by
giving declaratory judgements. The important article is article 184(3) which states "Without prejudice to the
provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with
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reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved
have the power to make an order of the nature mentioned in the said Article" (Constitution of Pakistan). This
article holds importance as it make sure that cases of human right abuse and ultra virus of executive branch of
the government which is not doing its job correctly and misusing the power- are needed to be heard quickly and
fairly. This is judicial power exercised by Supreme Court is sometimes excessively exploited and used as a tool
for administrative social reformer. The number of cases under the “fundamental rights” jurisdiction are not
correlated with the cause of human rights protection but rather used as political tool to mold the “matters of
public importance” and has made Supreme Court politically polarized and sensitive. For example in the case of
Nawaz Sharif and Jahangir Tareen disqualification the court had subjectively interpreted honesty mentioned in
Article 62(1)(f).

On good side, court protects the citizens which are underrepresented from the excessiveness and
disenfranchisement by the government. It makes sure that power in a state is separated and each institution give
check on the other institution, like court over the executive. The public interest litigation has to be clarified by
the statement of the court in the precedent of Iqbal Masih case: "If a controversy is raised in which only a
particular group of people is interested and the body of people as whole or the entire community has no interest,
it cannot be treated as a case of Public Importance". 116

In Pakistan the writ jurisdiction is expansively given to High Courts orders under article 199. In general words,
a writ is a type of remedy provided by the judiciary. A prerogative writ is used to direct the behavior of a
governmental body or agency. There are 5 types of writs or the extra ordinary remedies used by the courts:

1) Habeas Corpus means “to have a body”, a most powerful and used writ.
2) Mandamus means “We command”, a writ which can be used for constitutional, statutory, non-statutory
and tribunals to command any official to perform their public duty.
3) Certiorari means “ to be certified” through this writ Supreme Court and High Court can give command to
lower courts to submit records in order to verify that their judgements are not illegal like in cases for “Lack
of Jurisdiction”, “Excess of Jurisdiction” or “Violation of Natural Justice Principles.
4) Prohibition means “to forbid” is similar to Certiorari but is used before the decision verdict of the lower
court.
5) Quo Warrants means “what authority” is used by Court to ask the questions to public officials that by
about the basis on which they have assumed the public office and the title of their authority.

The Supreme Court has been given implicit power to suo motou jurisdiction by article 184(3). In Suo motou,
Supreme Court put aside the requirements of jursidictability and adjudicate the cases without following the
formal request procedures and legal counsel. The notice could be taken through informal sources as newspaper
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articles and letters or telegrams from the concerned parties like Iqbal Masih. Cases for Suo motou have been
controlled by Chief Justice of Pakistan and his bench who is prime actor in these cases. Hence the number of
cases depends on the appetite philosophy of Chief Justice himself. The ironic part is that suo motou cases heard
by chief justice in period 2005-2013 are more than the laws passed by parliament. The suo motou also make
judiciary collide with executive. It is thus being questioned that "Pakistani Supreme Court should exercise suo
motou jurisdiction under a structured and regulated scheme" and "exercise of judicial powers neither hamper
nor stunts policies of the executive"(133)

Under the trichotomy doctrine, it lies within the domain of Executive to determine the policy, for Legislature to
enact laws for policy implementation and Supreme Court to guarantee that in process no violation of
constitution happens. Courts are not to comment on the merits and demerits of governmental policies.

Pakistan lacks case-selection criteria for the hearing and there is no justifiability standard which can be applied
to each petition affecting efficiency of case disposal. For a court of 17 justices and a bench of 2-3 judges it can
take a decade for an action to be taken on a case. In Bhutto Case, Court set a precedent that if "governmental
acts violate fundamental rights, then citizens don't need to wait for suffer or actual injury to challenge those
acts" Due to this ripeness, there has been higher intake of cases. The second reason is the political question
doctrine. "Supreme Court of Pakistan takes political cases rather than refusing to adjudicate them" The court
unfortunately takes non-justiciable political issues.

The Pakistani courts experience 18,000 petitions per year (Excluding 1.2 million Petitions in Human Rights
Cells) in comparison U.S courts only receive 8000. Almost all petitions are scheduled for hearing in Pakistan
while in U.S the percentage is only 1%. The disposal rate of Pakistani judiciary is double of the US judiciary at
16000 vs 8000 respectively. However, the problem comes with overburdened judiciary having back-log of
pending cases amounting 22,000 while US has zero pending cases. This questions that resources of judiciary are
wasted when the matters of private dispute are taken as matters of public importance and the expansive power
to Supreme Court granted by Constitution is abused, although it was for the sake of the illiterate masses who
lack resources to fight for their rights. Hence the flexibility in the hearing standards create problems for the
courts and lowers the hearing standard. Furthermore the courts sometimes overstepped the domain of Prime
Minister when they do not reject the petitions focusing on challenging policy matters and infringe constitutional
doctrine of separation of Power. Since the judiciary is independent, it can check maladministration and corruption
(whether within the bureaucracy, or between the bureaucracy and legislature), since maladministration and corruption are
always investigated case by case. To a large extent, if the judiciary limited its oversight to these two matters (through
Article 199, the Ombudsman’s office, the NAB courts, and the Superior Judiciary), but received and decided a much
larger number of such cases, then many key problems with the bureaucracy may be solved. However, policy-level
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problems, such as poor selection standards, appointment decisions, continuing education, inadequate compensation, and
budget problems would remain, since these are the purview of parliament.

Jurisdiction of High Court

The constitution of Pakistan confers power to the High Court by the Article 199 which makes the high court
have territorial jurisdiction on the “affairs of the Federation, a Province or a local authority, to refrain from
doing anything he is not permitted by law to do, or to do anything he is required by law to do” It is important to
note that article 199(2) gives protection to fundamental rights like article 184(3) but the protection is not of the
public importance. High courts have original, criminal and appellate jurisdiction. The judiciary is further
subordinated under the session and district courts.

Oil and Gas Regulatory Agency

OGRA is the agency of the government of Pakistan responsible for regulating oil and gas sector of Pakistan
with an objective of “foster competition, increase private investment and ownership in the midstream and
downstream petroleum industry, protect the public interest while respecting individual rights and provide
effective and efficient regulations” (OGRA) The enabling statue is the OGRA ordinance 2002. Another
executive subsumed by the OGRA is Natural Gas Regulatory Authority (NGRA) which functions with respect
to OGRA ordinance 2002.

The notable policies formulated the subordinated legislation by OGRA are the following:

1) Tariff Regime for Regulated Natural Gas Sector in Pakistan 2018

2) Natural Gas Allocation and Management Policy 2005.
3) LPG Production & Distribution Policy 2011.
4) LNG Policy 2011.

The rules drafted by OGRA are:

1) Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing.

2) OGRA Gas (Third Party Access) Rules 2018.
3) Natural Gas Regulatory Authority (Licensing) Rules, 2002
4) Natural Gas Tariff Rules 2002
5) CNG Rules 1992.
6) LPG Production and Distribution Rules 2001.
7) LNG Rules 2007.
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Along with these, OGRA also issues technical standards for oil and natural gas.

Oil and Gas Sector Cases

Issues with CNG pricing (Public Interest Litigation): Engr. Iqbal Zafar Jhagra Vs Federation of Pakistan. The
famous case under the 184(3) was filed by petitioners in 2013. The issues raised by petitioner were about
pricing of petrol and natural gas which is directly related to enforcement of fundamental rights of citizens who
would bear such inflated prices. The petitioner claimed that CNG sold to vehicle owners at Rs 33 per kg in
2008 and was not in accordance to the law as only four years later it had been sold to Rs 95 per kg which is
thrice the original prices.

“OGRA had been conferred with power to set CNG prices according to the directive of federal government
under Rule 13 and no license should charge more than stipulated prices by OGRA under the same rule 13 of
CNG (Production and Marketing Rules 1992). Also, OGRA has been restricted to "comply with policy
guidelines (issued by Federal Government in setting prices and issuing licenses" (OGRA Ordinance 2002,
Section 21). But what surprising is that these same Rule 13 of CNG and Section 21 of OGRA Ordinance 2002
has been clashing with the promulgating independence conferred in other sections of OGRA Ordinance like
section 3 which requires professionalism, and security of vested tenure of the professionals and funding of
OGRA through Statutory funds. These all policies taken by legislature was to ensure and enable OGRA to be
independent from the Federal Government. But the Section 21 and Rule 13 confines OGRA’s bounds to the
federal government oversight. However Supreme interpreted these as policies rather than directives by the
federal government and thus OGRA is implied to only “include” those guidelines set by the federal government
in its “own” decision. Thus Supreme conferred OGRA to be the sole responsible for the pricing, rather than
federal government.”

While on the judgement of prices, Supreme Court concluded that prices are arbitrarily formed without basis on
law. The operating cost of CNG stations is taken as “per MOU with CNG Association & Federal Government”.
This MOU included two parties the dealers association and federal government but excluded OGRA as OGRA
was even a party to the MOU which is followed since 2008. Fixing prices on the basis of MOU was clear
violation of law. OGRA should have intervened to protect the public and has abandoned its duties and statutory
rules. The Supreme Court strike down OGRA’s current pricing formula and directed it to come up with new
pricing formula.

Here Supreme Court has been the enabler of the doctrine of separation of power and has reminded OGRA of its
power. Whereas the Cabinet and the Federal government had over-used their power. Supreme Court has shown
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distress in the Cabinet meetings had to be involved several times as OGRA has not been functioning its’ role
and is babysit by Legislature.

Appointment of key personnel in OGRA: Muhammad Yasin VS Federation Of Pakistan.

This case made headlines in the national news as the petitioner not only accused the respondent Mr. Taquir
Sadiq to be illegally appointed as the CEO of the OGRA due to his relations with powerful member of the
ruling political party, but also that incumbent has caused Rs 52 billion losses to OGRA thus a matter of national
interest being raised under Article 184(3).The petitioner claimed that OGRA was not transparent, partial and
nepotistic in the appointment Recall that OGRA under the Ordinance of 2002 preamble has to "protect the
public interest". And the top position in a leading regulator should not be treated as a gift. The facts questioned
were why the preparation for the appointment didn't start before when the previous CEO was retiring. The
process of appointment made the seat vacant for 10 months.

The grounds on which Article 184(3) applied was challenged by the respondent that firstly the removal of him
is pending in FPSC already. Secondly the petition has mala fide as petitioner himself was the contender of the
Chairman office and this is not a case for public interest but rather a personal motivation. Thirdly the petitioner
had already invoked the jurisdiction of High Court under constitutional remedy of Article 199 and have failed in
the High Court Judgement.

However, Supreme Court maintained the validity by mentioning that case in High Court was considered on
different grounds and on personal objections of the petitioner rather than on 184(3) and the test for the public
importance is independent of petitioner. Thus Supreme Court under torch bearer of Constitution which protects
the economic life to its citizens, considered facts to lie under Article 184(3). The Supreme Court called for
"proper functioning of the regulatory bodies as the citizen's fundamental right".

The OGRA ordinance declares to "protect the individual rights and to provide effective and efficient regulation”
in Section 7 and in meeting those standards by the legislature, the public functionary is questionable.

The facts provided by respondent included unaccounted UFG and SNGPL losses which hiking from year on
year basis along with CNG prices. Rise in prices resulting from incompetency clearly violates Article 9, 14, 18,
23 and 24 of the constitution. Also in question are the Ordinance claims of Regulators independence from its
regulated organizations.

Licensing of CNG: Messrs Naushero Feroze v Federation Of Pakistan

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In this case the petitioner applied for the license of setting up the filling station and after acquiring such a
license by OGRA, still the provision of CNG to his station was being delayed without any justification, despite
all the requisite undertakings for the proposed CNG Station had been completed. It was contended by the
respondents that he petitioner was required to apply for the renewal of its provisional license three months prior
to its expiry according to the Rule 7 of Compressed Natural Gas (CNG) (Production and Marketing) Rules
1992. Before this, the matter was placed in front of OGRA as well clearly stated that the request of the
petitioner for grant of CNG (production and marketing) license under the prevalent policy of Federal
Government cannot be considered as petitioner does not qualify / meet criteria for the grant of such license.

The primary issue to be determined herein is whether it was just and appropriate for this Court to determine the,
legality of the respondents' denial of the CNG connection / supply to the petitioner.

“It is apparent from a review of the aforesaid orders of the honorable Supreme Court that certain exceptions
were made and CNG connections / supply was permitted to entities that were otherwise in conformity with the
prescriptions of the laws, rules and regulations. However, the order does no merit to the petitioner as it is
apparent that the petitioner was not in the list of entities that were granted relief by the honorable Supreme
Court after having been determined that they had complied with all the relevant laws, rules and regulations as
per regulatory mechanism of OGRA”.

Even otherwise there is now a decision of OGRA in the field that clearly states that the petitioner had not
complied with all the relevant laws, rules and regulations as per regulatory mechanism of OGRA.

This Court is cognizant of the well settled principle of law that policies of the Government may not be
interfered with by the Court unless it is manifest that a policy is violative of the fundamental rights enshrined in
the Constitution.

It is the considered view of this Court that the facts and circumstances of this case do not merit any further
indulgence of the Constitutional jurisdiction of this Court. In view of the reasoning provided herein this petition
is hereby dismissed with no order as to costs.”

2016 CLC 562 Islamabad High court: SNGP vs OGRA

“The rule that the Court will not entertain a petition under Article 199 when other appropriate remedy is
available is not a rule of law barring the jurisdiction of the Court.

When the law provides an adequate remedy, constitutional jurisdiction under Article 199 of the Constitution
will be exercised in exceptional circumstances.
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The exceptional circumstances which may justify invoking jurisdiction under Article 199 of the Constitution
when adequate remedy is available are when the order or action impugned is palpably without jurisdiction,
malafide, void or coram-non?judice.

The tendency to bypass the remedy provided under the relevant statute by resorting to the Constitutional
jurisdiction of a High Court is to be discouraged so that the legislative intent is not defeated.

Constitutional jurisdiction under Article 199 cannot be readily resorted to when the matters amenable to the
jurisdiction of an exclusive forum is mandated by the Constitution itself or when hierarchy provided under a
statute ends up in appeal, revision or reference before a High Court or directly before the apex Court.

The High Court in exercising its discretion will take into consideration whether the remedy provided under the
statute is illusory or not.

It is, therefore, embedded in law that once a person has opted for and availed an adequate remedy available
under the law, then resort cannot be made to invoking jurisdiction under Article 199 of the Constitution. The
same principles would also apply in case of a petition filed under section 12(2) of the Ordinance of 2002, as the
legislature has made it subject to the satisfaction of the Court that no other remedy is provided under the
Ordinance of 2002.

For the reasons mentioned above, the petitions are not maintainable and are accordingly dismissed. It will be
open for the petitioner company to raise all the grounds as described in these petitions before the Authority in
the proceedings under section 13 of the Ordinance of 2002.”

The due diligence standards of appointment were assessed in the case and respondent was found to be unfairly
appointed. The Supreme Court ordered the respondent to return his salaries & benefits and asked NAB to
provide report on the corruption charges levied.

Calling bids: The judgment in Tez Gas Case (PLD 2017 Lahore 111) delivered by a learned Single Bench of
this Court is examined, whereby charging of Signature Bonus was held as legal for the reason that “Liquefied
Petroleum Gas (Production & Distribution) Policy Guidelines ”, 2013 ("Policy of 2013") did not envisage
regulation of LPG price, which was to be determined by marketing force. Relevant part

Market forces determine price of LPG. The Government has no role to play in LPG price fixation. Furthermore
OGRA as the front line regulator determines the reasonableness of the price so as to prevent cartel formation or
customers are not charged high prices of LPG. They also do not fix or control the price of LPG. The counsels
for the Petitioners argued their case essentially on the ground that Signature Bonus is a component of the LPG
price and therefore has to be regulated by OGRA and cannot exceed the Aramco Price. A bare review of the
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2013 Policy clarifies that LPG price is deregulated and that neither the Government nor OGRA is required to fix
the price of LPG. In fact clause 3.4.1 of the 2013 Policy reveals that the 2013 Policy Guidelines on LPG Pricing
is in continuation of the Government's deregulation policy which has been in force since 2011. It also clarifies
the role of OGRA such that OGRA will only intervene if the LPG price becomes unreasonable. In such cases
OGRA can look into the reasonableness of the price after accounting for certain given factors. According to
records, Aramco Prices are irrelevant for fixing base price of stock as it is decided by Market Forces. Pursuant
to the ECC decision dated 1.1.2013, the 2013 Policy was issued which requires price to be fixed by market
forces and not the Aramco Price. Furthermore Clause 4(iii) of the 2013 Policy clearly provides that the 2013
Policy supersedes previous orders and polices issued by the Federal Government.

The court dismissed the case, as this Policy was approved by the ECC and the letter issued was not relevant.

Quasi-Judicial Powers of the executive: Fateh Jhang vs Federation of Pakistan.

“The provisions of the Ordinance provide for a comprehensive and efficacious mechanism for reversal of
grievances against a licensee or in case of a regulated activity, which includes a right of appeal and review. The
order of schedule of supply of Natural Gas, impugned by the appellant before this Court in its exercise of
jurisdiction under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, falls within the ambit
of the proviso of subsection (2) of section 3 of Law Reforms Ordinance, 1972, as the Ordinance provides for an
elaborate mechanism of reversal of grievance, which includes an appeal and review. The appellant/petitioner by
invoking the jurisdiction of the High Court under Article 199 of the Constitution had bypassed the efficacio us
alternate remedy provided under the Ordinance.”

The dismissal of this case shows that High Court respected the Quasi-Judicial power of the regulatory body as
the provision in statue itself provided the appeal system within the executive for a regulated activity case.

Conclusive remarks

Article 199 power of the High Courts should be maximized to check case by case bureaucratic errors such as
maladministration and corruption, while Article 184(3) powers of the Supreme Court should be maximized to
check policy-level errors such as parliament’s failure to direct or control the bureaucracy.

The threshold of cases reported on trivial matters to the high court and Supreme Court has been higher. We see
the appropriate use of Article 184(3) but article 184(2) has been used in most cases of the oil and gas sector to
exhaust the resources of the Supreme Court where the higher court revised or restrict the order as in case of the
CNG liscensing. Most of the cases coming to the highcourts like Fateh Jahng vs Federation of Pakistan, Messur
vs Federation were dimissed by the courts. The courts are seen to respect the power delegated by authority.
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However we see that 2 major cases in Supreme Court related to unauthorized appointments and pricing which
relate to the public importance and article 184(3) was applied.

This greater turnover of dismissal shows that either lawyers are trying to earn more or the public awareness is
low. The Regulator due to high competition in the petroleum industry is little more efficient than the regulators
of the other sectors, in cases of licensing bidding. However we see that the OGRA has little power from the
legislature when it comes to pricing. So we can conclude that Political oversight influences more to OGRA then
Judicial Activism.