SHC declares Murtaza Wahab’s appointment as adviser illegal

Says only elected representatives can exercise executive authority; declares Murtaza Wahab’s appointment superfluous on the grounds that the advocate general is the competent person for the job

The Sindh High Court (SHC) declared on Tuesday that Murtaza Wahab’s appointment as the chief minister’s law adviser and his portfolio of provincial minister were illegal.

The court’s division bench headed by Chief Justice Sajjad Ali Shah set aside the notifications of Wahab’s appointment as well as the allocation of law and enquiries & anti-corruption establishment portfolios to him because “executive authority can only be exercised by elected representatives”.

Wahab was appointed as the CM’s law adviser on April 21 last year, and when Murad Ali Shah took over as the CM, he continued Wahab’s services by issuing fresh notifications for law adviser as well as for the portfolios of law and enquiries & anti-corruption establishment with the status of provincial minister.

The SHC observed that Wahab was simultaneously given the executive authority of the law ministry and other departments, but he was never appointed as law adviser for the intent and purpose of Article 130(11) – “the chief minister shall not appoint more than five advisers” – rather his induction was for the exercise of executive authority.

Therefore, added the court, his appointment ab initio (from the beginning) was not as an adviser, rather the “constitutional framework was skewed to pass on executive authority held by the CM in trust for the elected representative unto the law adviser and the constitutional framework was blatantly circumvented”.

Wahab’s appointment as law adviser was also deemed superfluous on the grounds that the advocate general is the competent person for the job, hence declaring the appointment void ab initio and of no legal effect.

The bench said the constitution envisages the AG to advise the provincial government on matters related to law and to perform legal duties of a legal character, while the AG has also been granted the right to speak and participate in the proceedings of the provincial assembly, adding that no such role is envisaged for a provincial adviser within four corners of the constitution.

The court observed that while the CM has apparent unhindered constitutional privilege of making such appointments, such power should never be exercised in a manner of a monarch who is not answerable to anyone, because the CM carries the trust of those who elected him to make decisions solely on merit and not on account of fear or favour.

The bench said provisions of Sindh Government Rules of Business 6(ii) – “the chief minister may delegate all or any of the powers of minister to such adviser” – and 7(ii) – “the chief minister may, in respect of any department, delegate all or any of his powers under these rules to a minister or an adviser or secretary of that department” – was in direct conflict with the scheme of democratic government as enshrined by the constitution.

The SHC also observed that Wahab’s appointment as chairman of the board of governors of law colleges in Karachi and as pro-vice chancellor of the Shaheed Zulfikar Ali Bhuttto University of Law was meritless, void and illegal.

Petitioner Fareed A Dayo, who had challenged Wahab’s appointment, also sought reconstitution of the board of governors of law colleges.

He argued that advisers are neither under oath nor are answerable to the cabinet or the assembly, and thus could act without restraint.

Wahab’s counsel Makhdoom Ali Khan claimed that his client’s appointment was justified as no prerequisites were set for appointing an adviser, adding that even a milkman could be appointed a law adviser.

He also said the CM’s decision was beyond legal scrutiny because no malice or irrationality was involved.