2024 CLS 21

Other citations: 2023 LHC 4155 = 2024 CLC 171

[Lahore High Court]

Before Shahid Jamil Khan, J

Naveed Mushtaq Abbasi—Petitioner

versus

Federation of Pakistan and others—Respondents

Writ Petition No. 2376 of 2023, decide on 19^th July, 2023.

Saeed Yousaf Khan and Khawaja Javed Iqbal, Advocates for petitioner.

Arshad Mehmood Malik, Assistant Attorney General for Pakistan assisted by Qaiser Masood, Deputy Legal Advisor, M/o IPC, Govt. of Pakistan, Islamabad for respondents nos. 1, 2, 3 and 15.

Imtiaz Rashid Siddiqui, Shehryar Kasuri, Muhammad Hamzah, Bilal Raza and Rana Mohsin Rabbani, Advocates for respondents nos. 4 to 12 and 14.

Akbar Khan and Rashid Hafeez, Advocates for respondent no. 13.

Date of Hearing: 19^th July, 2023.

JUDGMENT

Shahid Jamil Khan, J:––Sports have a significant and prominent place in a society for fostering a sense of community, national identity, strong emotions and social cohesion. In modern times of frequent international and domestic events and enhanced viewership, it has attained the status of an industry. Besides achieving these goals, sports are regulated and controlled by the Government in a country to ensure its development through fair competition. In Pakistan, the Sports (Development and Control) Ordinance, 1962 is in vogue, purpose of which is proclaimed in its Section 3(1):-

“3. Establishment of the Board.– (1) As soon as may be after the commencement of this Ordinance, the Central Government may, for the purpose of promoting and developing uniform standards of competition in sports in Pakistan comparable to the standards prevailing internationally and regulating and controlling sports in Pakistan on a national basis, by notification in the official Gazette, constitute, one or more boards for the control of Sports in Pakistan.”

[Emphasis supplied]

Except cricket, no sport could achieve the status of an industry in Pakistan. The affairs of Cricket Board are consistently in news, in particular, when there is any change in Government. It is imperative now to observe that interference by the state institutions into political matters and political interference into affairs of statutory institutions is the cause of instability and uncertainty in Pakistan.

The controversy addressed in this judgment is an example, how the Constitution of PCB is manipulated to get the politically motivated results. Only solution to ensure stability and certainty is to respect and prefer the spirit of the Constitution over politically motivated desires, likings and dislikings.

2.           After the last change in Federal Government, the Constitution of Pakistan Cricket Board, 2019 (“PCB Constitution, 2019”) was repealed and Constitution of Pakistan Cricket Board, 2014 (“PCB Constitution, 2014”) was restored. The policy shift behind it was restoration of Departmental Cricket. Through Gazette Notification dated 22.12.2022, a Management Committee was appointed to run the affairs of PCB, with full executive power to achieve the aim of restoration of Departmental Cricket Structure, etc. As a consequence, the PCB Constitution, 2014 was restored. The Notification is reproduced:-

“NOTIFICATION

Islamabad, the 22^nd December, 2022

S.R.O. 2314(I)/2022. In pursuance of this Ministry’s Notification No.1-18/2018-IPC (S-II) dated 22nd December, 2022 regarding repealing of Constitution of Pakistan Cricket Board notified vide S.R.O.1045(1)/2019 dated 19th August, 2019, the Federal Government is pleased to constitute a Management Committee to manage the affairs of PCB with full executive powers with the aim of effecting the restoration of Departmental Cricket Structure and other allied matters, including the nomination of a Board of Governors and election of Chairman, as stipulated in the 2014 Constitution, within a time frame of 120 days. The Management Committee shall comprise of the following members:

Chairman

i.      Mr. Najam Aziz Sethi, (ex-Chairman PCB)

Members.

Members

i.      Mr. Shakil Sheikh (ex-PCB BoG)

ii.     Mr. Gul Zada (ex-PCB Bog)

iii.     Mr. Nauman Butt (ex-PCB BoG)

iv.     Mr. Haroon Rashid (ex-Test Cricketer)

v.     Ms. Sana Mir (ex-Pakistan Captain Women’s Team)

vi.     Mr. Aized Syed (ex-PCB Direction National High Performance Centre)

vii     Mr. Tanvir Ahmed (ex-President Larkana Region)

viii.   Mr. Gul Muhammd Kakar (ex-President Quetta Association)

ix.     Mr. Ayaz Butt (ex-Member PCB BoG)

x.     Mr. Shahid Khan Afridi (former Captain, Pakistan Cricket Team)

xi.     Mr. Shafqat Rana (former Cricketer)

xii.    Mr. Mustafa Ramday (Advocate Supreme Court of Pakistan)

xiii.   Ch. Arif Saeed (CEO Service Industries & ex-Member PCB BoG)”

Tenure of the Management Committee was extended vide Notification dated 23.04.2023 to 21.06.2023. Under the restored PCB Constitution, 2014, Election of 91 districts 13 Regions were conducted. The elected Presidents of the Regions become Members of the BoG, on rotation basis, and can vote for election of the Chairman, under Paragraph 10(1)(b).

The petitioner, being representative of Rawalpindi Region, was notified as Member of the BoG, reflecting at serial No.06, in Notification dated 20.06.2023, which is reproduced:-

“NOTIFICATION

In furtherance of the Ministry of Inter-Provincial Coordination’s Notification SRO.2314(I)/2022 dated 22^nd December, 2022, read with Notification F.No.1-18/2018- IPC(S-II) dated 23^rd April 2023, pursuant to the decision of the PCB management committee at its 6th Meeting held on 20^th June 2023; and in accordance with Paragraph 10 of the PCB Constitution 2014, the members of the Board of Governors (BOG) of the Pakistan Cricket Board under the PCB Constitution 2014 are notified as follows:-

Sr. No.     Composition of BOG

1              Nominated by Patron (to be notified)

2              Nominated by Patron (to be notified)

3              President Peshawar Region

4              President Karachi Region

5              President Lahore Region

6              President Rawalpindi Region

7              Representative of Sui Northern Gas Pipelines Limited (SNGPL)

8              Representative of Sui Southern Gas Company (SSGC)

9              Representative of Water & Power Development Authority (WAPDA)

10            Representative of Khan Research Laboratories (KRL)

11            Federal Secretary, Ministry of Inter Provincial Coordination, Government of Pakistan or any other officer nominated by him as an ex-officio member (Nonvoting member)

[Emphasis supplied]

3.           For election of the Chairman, under Paragraph 7 of the PCB Constitution, 2014, election schedule was issued for 27.06.2023.

On same day, Federal Government issued Notification dated 20.06.2023 and handed over the affairs of PCB to the Election Commission. The Notification is reproduced:-

“NOTIFICATION”

No.1-18/2018-IPC (S-II). In continuation of this Ministry’s Notification of even numbers dated 22^nd December, 2022 and 23^rd April, 2023, the extended tenure of the management committee of PCB stands completed. On completion of the tenure, the Management Committee of PCB stands dissolved, ceases to operate. The affairs of PCB are hereby handed over to the Election Commissioner appointed by Patron of PCB vide this Ministry’s Notification of even number dated 24^th February, 2023.”

[Emphasis supplied]

Composition of the Board was changed by the Election Commission through Notification dated 22.06.2023 by replacing the Presidents of the Regions, including petitioner with Presidents Larkana, Dera Murad Jamali, Bahawalpur and Hyderabad Regions, as Members of the BoG and the date for Chairman’s election was fixed as 28.06.2023 in PCB Headquarter at Lahore.

4.           Another Management Committee was Notified on 05.07.2023, for four months, through following Notification:-

“NOTIFICATION

No.F.1-18/2018-IPC(S-II). In exercise of the powers conferred under section 3 & 4 of the Sports (Control and Development) Ordinance, 1962 read with Article 48 of the Pakistan Cricket Board (PCB) Constitution, 2014, the Federal Government is pleased to appoint the following Management Committee (MC) of the PCB to run the day to day affairs of PCS and with the aim of complete restoration of Departmental Cricket Structure as provided in the PCB Constitution, 2014, the nomination of a Board of Governors and early conduct of election of Chairman, PCB for a period of four months with immediate effect:

[Emphasis supplied]

The Notification and fixation of date for Chairman’s election were challenged in different High Courts of Pakistan. As a consequence, the Election of Chairman, being stayed, was not conducted.

5.           The petitioner has also assailed appointment of new Management Committee through Notification dated 05.07.2023 of Pakistan Cricket Board (“PCB”), alongwith change in composition of Board of Governors (“BoG”), excluding petitioner’s name and proposed election for the Chairman PCB through changed BoG.

Learned counsel for the petitioner submitted that composition of the Board, after being notified could not be changed by the Election Commission, therefore, the proposed Election of the Chairman would also be illegal. He argued that the Notified Board could only be dissolved under Paragraph 38 by the Patron (The Prime Minister of Pakistan under Paragraph No.5), if conditions under Paragraph No. 38(1)(a to e) are satisfied.

6.           Learned counsel for the respondents-PCB submitted that Management Committee could not discharge its duty and responsibility within the prescribed period, therefore, the affairs of Cricket Board were temporarily handed over to Election Commission, under Paragraph 7(2).

Replying to the ground of change in the BoG by Election Commission, learned counsel submits that the Notification of BoG dated 20.06.2023 was issued by Chairman of first Management Committee alone, violating clause (6) of Paragraph 38, which requires that Notification of BoG by the Management Committee. To support this assertion, he read the minutes of first Management Committee’s meeting convened at 04:00 pm on 20.06.2023, with permission of the Court.

However, he defended the Notification dated 22.06.2023 by the Election Commission, whereby the Members of the Board were re-notified. He explained that the Notification of change in BoG was issued by the Election Commissioner, during the interregnum period, when earlier Management Committee had completed its tenure.

Learned counsel reiterated that first Management Committee could not complete the task of electing Chairman after Constitution of the Board because the Chairman of the Management Committee did not agree with the decision of Constitution of Board approved by rest of the Members of the Management Committee in a meeting held on14.06.2023.

Submitted that Federal Government has already appointed adjudicator while exercising power under Paragraph 7(4) of PCB Constitution, 2014 and any future or existing dispute relating to election of the Chairman can be raised and adjudicated upon by the adjudicator i.e Former Chief Justice of Pakistan.

7.           Learned Assistant Attorney General adopted the arguments of learned counsel for respondents-PCB and submits that the impugned Notification dated 05.07.2023 of Management Committee is in accordance with law and in continuation of earlier Gazette Notification dated 22.12.2022.

8.           Heard. Record perused.

9.           Restoration of PCB Constitution, 2014 on repeal of PCB Constitution, 2019 is not in dispute. Election in 91 Districts and 13 Regions is also not controverted.

The dispute mainly is regarding composition of BoG, which is governed by Paragraph 10 of PCB Constitution, 2014. The BoG consists of Eleven voters and one exofficio member i.e. a Chairman, four elected representatives of Regions, on the basis of rotation, four representatives of Service Organizations and Departments and two members to be nominated by the Patron. Clause (e) of the Paragraph 10, envisages that for first Election under the PCB Constitution, 2014, four representatives of the Regions shall be from top four finishing teams of the latest Quaid-e-Azam Trophy Tournament. Four representatives of Services Organizations and Departments shall be from top four finishing teams of latest President Trophy Tournament, for the first Election of the BoG. Paragraph 10(1)(e) is reproduced:-

“10. Composition of Board of Governors.- (1) There shall be a Board of Governors consisting of,-

(e) Federal Secretary, Ministry of Inter Provincial Coordination, Government of Pakistan or any other officer nominated by him shall be an ex officio member and shall have the right to attend and speak at all meetings and otherwise take part in the proceedings of the Board of Governors, but shall not be entitled to vote, and for the first elections of the Board of Governors under this Constitution, four representative members of the Regions shall be from top four finishing teams of the latest Quaid-eAzam Trophy Tournament, and the four representative members of Service Organizations/Departments shall be from top four finishing teams of latest President’s Trophy Tournament.”

[Emphasis supplied]

Mr. Imtiaz Rashid Siddiqui, Advocate Supreme Court, has convincingly explained that top four finishing teams of the tournaments, if given representations in every Election of the BoG would restrict representation of Regions, where the game of cricket is not developed. Nevertheless, question arose, whether Election of BoG after restoration of the PCB Constitution, 2014 would be first Election under the Constitution. He has successfully explained that on repeal of PCB Constitution, 2019, the Constitution of 2014 is restored and not re-promulgated, therefore, the Election of BoG, in question is continuation of the earlier two Elections under the same PCB Constitution, 2014, hence rotation method shall be followed.

The Court is convinced and hold accordingly with direction that by excluding the Regions, already represented in earlier two BoGs, the Election of the representatives of four Regions shall be strictly in accordance with the regulation, if any. In absence of regulation, effective representation from different parts of the country without political influence shall be ensured.

The purpose should be representation of the Regions for effective policy making and not to get a person of Government’s choice elected as Chairman. Though Constitutional Courts cannot and should not interfere in policy making which is exclusive domain of the elected Government (executive), yet Courts can interfere or at least observe, where policy making infringes the fundamental right guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. Bedrock of the Constitution of Pakistan is exercise of sovereignty through elected representatives. Practice and history, shows that Chairman of Cricket Board is elected from the two members nominated by the Patron because the Government is always in a position to influence the representatives of Service Organizations and Departments. This Court expects and recommend that suitable amendments shall be brought in the Paragraphs No.7 and 10 of PCB Constitution, 2014 to ensure that sovereignty (policy making and management) in the Cricket Board is exercised by the elected representatives of the stakeholders who are effectively involved in the game of Cricket at grass root level.

10.         Though Minutes of Meeting by first Management Committee on 14.06.2023 are not part of the Court record, however, these were allowed to be read by respondents’ side during proceeding in the interest of justice. It is established before the Court that Notification of BoG dated 20.06.2023 is not by the Management Committee but by the Chairman alone, therefore, is not in accordance with Paragraph No.38(6) of PCB Constitution, 2014. Even otherwise, the nomination of the Regions in Notification dated 20.06.2023 is not based on rotation, hence, offends Paragraph 10(1)(b).

The Election Commission, appointed by the Patron, is independent of the Cricket Board [Paragraph 29(2)]. It has power and responsibility for holding and monitoring fair, free and transparent Election [Paragraph 29(5)]. However, Paragraph No. 7(2) creates an exception for an interim period, when office of the Chairman falls vacant for any reason or during four weeks from expiry the term of Chairman till the date of the Election of Chairman, to be fixed by Election Commissioner. The meeting of BoG, convened for the purpose of Election of the Chairman shall be presided over by the Election Commissioner. During the interim period, the powers of day to day management of the Board shall rest in the Election Commissioner but no long-term decision can be taken during interim period. Paragraph 7(2) is reproduced:-

“7. Election of Chairman.-(1)…..

(2) The Election Commissioner shall hold and conduct the election and convene and preside over the special meeting of the Board of Governors to be held for the purpose of electing the Chairman. The election shall take place on a date to be fixed by the Election Commissioner which date shall be a date falling not later than four weeks after the scheduled expiry of the term of the Chairman or four weeks from when the office of the Chairman falls vacant for any reason. On the scheduled expiry of the term of the sitting Chairman or if the office of Chairman falls vacant for any other reason, all powers of the Chairman shall vest in and be assumed by the Election Commissioner provided that the Election Commissioner’s primary responsibility shall be to undertake a fair and transparent election of the Chairman and no long term decisions shall be made in this interim period. During this interim period, the power of day to day management of the Board shall vest in the Election Commissioner.”

[Emphasis supplied]

The Provision, ibid, is unambiguous to restrict the Management of Board for day to day affairs. Notification dated 22.06.2023, for change in composition of BoG is a long term decision having a permanent character, therefore, is beyond the scope of day to day management of Board, hence is declared without lawful authority.

11.         Notification dated 05.07.2023 for appointment of second Management Committee does not suffer from any illegality or lack of authority. Federal Government is competent, under Section 3 of the Ordinance of 1962, read with Paragraphs 38 and 48, to renotify and change composition of Management Committee.

Since, existing Management is competent to run the affairs and complete the task, assigned in Notifications dated 05.07.2023 and 22.12.2022, therefore, is directed to notify the BoG, following the relevant Provisions of PCB Constitution, 2014 as interpreted and directed supra, within 15-days. Election of the Chairman be also conducted within 07-days, thereafter.

This petition is decided in the manner and allowed to the extent noted in the judgment.

Disposed of accordingly.

Order accordingly