IN THE HONOURABLE HIGH COURT OF SINDH AT KARACHI (CONSTITUTIONAL, JURISDICTION) Lf-0f 2023 Freconted on’ [fe Constitution Petit 236 : stitution Petition No, Ch Rey (Wri, Javed Iqbal Burgi Son of (late) Muhammad Deen, Muslim, Adult, Resident/Office at Panorama Centre No. 1, 2° Floor, 201, 202, Saddar, Karachi... é Petitioner Versus 1. Federation of Pakistan, ‘Through th ary, Ministry of Finance, Islamabad 2. The Chairman, National Accountability Bureau, Shabrah-e-Jamburiat, G-5/1, Islamabad & Regional NAB Karachi NAB (K) , PRCS Building, 197/5, Dr Daudpota Road, Cantonment Karachi 3. The Ministry of Foreign Affairs, Through the Secretary Foreign Office Building, Constitution Avenue, G-5, Islamabad ; 4. The Ministry of Economic Affairs, Through the Secretary Block-C, Pak Secretariat, Islamabad 5. The Prime Minister of Pakistan Complaint Cell, ‘Through the Secretary Prime Minister’s Office, Islamabad, 6. Sadia Khan, Commissioner, Securities and Exchange Commission of Pakistan, Islamabad 7. The Securities and Exchange Commission of Pakistan, Through the Chairman, NIC Building, 63 Jinnah Avenue, Blue Area, Islamabad...ncnsn Respondents CONSTITUTIONAL PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKIST ‘AN, 1973 ee ee% It is most respectfully and most humbly submitted on behalf of the abovenamed Petitioner as under: 1. That the subject-matter of this present Constitution Petition is, inter-alia, in relation to the illegal appointment of, and the abuse of powers by, the Respondent No, 6 as the commissioner of the Securities and Exchange Commission of P: 2. That the Petitioner is a known legal activist, who is involved in various struggles for the enforcement of the legal rights of the people of Pakistan and is interested in safeguarding the interest of public at large and regarding thy ues of publie importance. This present Petition has been instituted by the Petitioner, inter-alia, because the proper procedure for the appointment of the Commissioner of the Securities and Exchange Commission of Pakistan [hereinafter referred to as the *SECP"] has not been followed in the appointment of the Respondent No. 6 as commissioner. It is pertinent to note that the appointment of a Commissioner in the SECP is an issue of public importance as the SECP. governs the regulation of corporates, capital markets, insurance and the non-banking financial sectors. The Petitioner has also instituted several Public interest Constitution Petitions previously, including the following Petitions before the Honourable High Court of Sindh at Karachi: & — C.P. No. D-3318 of 2012 [‘PILER and Others Vs. Federation of Pakistan and Others] in relation to 2012 Baldia Factory Fire Incident. CP No. D-295 of 2013 [‘PILER and Others Vs. SBCA and Others") in relation to 2012 Baldia Factory Fire Incident. CP. No. 1181 of 2014 [‘PILER and Others Vs. Federation of Pakistan ‘and Others’) in relation to the Tharparkar tragedy. CP. No, 1171 of 2012 [‘PILER and Others Vs. Province of Sindh and Others’] in relation to the criminal murder case of the acid attack vietim Fakhra Younus,Se S A copy of the Memo of C.P. No. D-3318 of 2012, C.P. No. D-295 of 2013, CP. No. 1181 of 2014 and C.P. No. 1171 of 2012 filed by the Petitioner are attached and marked as Annexure ‘A? to ‘4.3? . That it is submitted that the SECP is an important authority which governs the regulation of corporates, capital markets, insurance and the non-banking financial sectors. Therefore, it is essential that each and every officer of the SECP be appointed in accordance with law and that they act in an impartial and objective manner 10 the best of his/her abilities so as to enable the corporates of Pakistan to flourish, }. That the Respondent No. 6 was appointed as Commissioner, SECP, in March, 2020. However, at the time of her appointment, she was holding the position of Honorary Consulate General of Finland and she continues to hold such position which is evident from the Directory of the Consular Corp Sindh. Furthermore, the Respondent No. 6 was also the CEO of Selar Enterprises (Private) Limited at the time of her appointment. This is a clear breach of Section 16 of the Securities and Exchange Commission of Pakistan Act, 1997 [hereinafter referred to as the “SECP Act’), which requires prior disclosure of any potential conflict of interest and also Sections 3(3) and 5 of the SECP Act. This ground alone is enough for the disqualification of Respondent No. 6 under Section 18(e) of the SECP Act. A copy of the Securities and Exchange Commission of Pakistan Act, 1997, is annexed and marked as Annex ‘B* ‘That it is also well documented in the press that the Respondent No. 6 was not given a go-ahead at the time of initial summary presentation to the then-cabinet as a number of cabinet members had raised serious concerns about her competence, suitability and above all else, serious conflicts of interest. She was, accordingly required to resign from all positions held by her at that time and provide confirmation of having done so, She reportedly provided such confirmation which is a blatant lie and she has lied to and deceived the Federal4 Government as it is now an established fact that she never resigned from her post of Honorary Counsel General of Finland till date, That in addition to the above, there are material irregularities regarding Ms. Sadia Khan’s appointment which are evident from the following. It is part of the record that the Respondent No. 6 had submitted her application to the Ministry of Finance after the deadline for the submission of applications had passed. However, the Ministry of Finance accepted her application despite it being submitted after the deadline due to the pressure of certain influential individuals. Henee, the appointment of the Respondent No. 6 as Commissioner, SECP is void ab initio, Secondly, the Respondent No. 6 does not have the requisite experience and expertise to be considered for the for the post of Commissioner, SECP, since she has mostly worked in her family business as opposed to any professional organization. Her total work experience in a professional organization is of 4 years when she worked as an Executive Director at SECP under the Chairmanship of Mr. Khalid Mirza, at the age of 32 years. It is pertinent to note that the aforesaid appointment of the Respondent No. 6 as Executive Director ‘was also not based on merit as the Respondent No. 6 was clearly not qualified to be an Executive Director at the age of 32 and with no prior relevant experience, Hence, the Respondent No. 6's time in the SECP was only limited to the tenure of Mr. Khalid Mirza. Her other experience includes being posted as CEO of Pakistan Institute of Corporate Governance, which again was an appointment which was made due to the influence of Mr. Khalid Mirza who was then Chairman of the SECP policy board. As per Section 5 of the SECP Act, the Commissioners shall be persons known for their “integrity, expertise, experience ‘and eminence in any relevant field”. Furthermore, Section 3(3) of the SECP Act states and emphasizes that it isthe responsibility of the Commission to “promote, enhance and maintain independence of the Commission”. Therefore, the Respondent No. 6’s appointment as Commissioner is in violation, inter-alia, of Sections 3(3) and 5 of the SECP Act.1, a ‘That without prejudice to the above, it is submitted that since her appointment, the Respondent No. 6 has blatantly abused and misused her powers and has shown her bias on numerous occasions as evidenced by the following examples. Firstly, the Respondent No. 6 has misused her powers by awarding regulatory approvals to certain organizations which she favours, and has unduly created hurdles in the licenses of her business rivals. In a more recent move, she blocked an important IPO by giving adverse comments, based on a personal bias against the directors of that company and the advisors of the IPO. It is submitted that the aforementioned actions of the Respondent No. 6 are blatant violations of the SECP Act. Secondly, the Respondent No. 6 has been involved in exploiting SECP’s resources by unilaterally increasing her personal perks and protocols. She has used her influence to enhance her monthly honorarium soon after becoming Commissioner which is a blatant violation of the provisions of the SECP Act, since the increments and other perks are due after at least 1 year of service. Moreover, the Respondent No. 6 has also claimed enhanced security, drivers and home staff at the cost of the Commission and of the tax payers of this country, JJappointment of, and the abuse of powers by, the Respondent No. 6 as the commissioner of the Securities and Exchange Commission of Pakistan. However, despite receipt of the aforesaid complaint, no action has been taken and no response has been received by the Petitioner either. A copy of the Complaint dated: 04.01.2023 along with delivery reports is annexed and marked as Annex *C That it is most respectfully and most humbly submitted that being aggrieved by the illegal appointment of, and the abuse of powers by, the Respondent No. 6 as the commissioner of the Securities and Exchange Commission of Pakistan as being unconstitutional, the Petitioner has no alternative or efficacious remedyexcept to invoke the Constitutional jurisdiction of this Court on the, inter alia, facts and grounds stated herein. GROUNDS A. That the Respondent No. 6 was appointed as Commissioner, SECP, in March, 2020, However, at the time of her appointment, she was holding the position of Honorary Consulate General of Finland and she continues to hold such position which is evident from the Directory of the Consular Corp Sindh. Furthermore, the Respondent No. 6 was also the CEO of Selar Enterprises (Private) Limited at the time of her appointment. This is a clear breach of Section 16 of the SECP ‘Act, which requires prior disclosure of any potential conflict of interest and also Sections 3(3) and 5 of the SECP Act. This ground alone is enough for the disqualification of Respondent No. 6 under Section 18(¢) of the SECP Act. B. That it is also well documented in the press that the Respondent No. 6 was not given a go-ahead at the time of initial summary presentation to the then-cabinet ‘as a number of cabinet members had raised serious concems about her competence, suitability and above all else, serious conflicts of interest. She was accordingly required to resign from all positions held by her at that time and provide confirmation of having done so, She reportedly provided such confirmation which is a blatant lie and she has lied to and deceived the Federal Government as it is now an established fact that she never resigned from her post of Honorary Counsel General of Finland till date. . That in addition to the above, there are material irregularities regarding Ms. Sadia Khan's appointment which are evident from the following. It is part of the record that the Respondent No. 6 had submitted her application to the Ministry of Finance after the deadline for the submission of applications had passed. However, the Ministry of Finance accepted her application despite it being submitted after the deadline due to the pressure of certain influential individuals, Hence, the appointment of the Respondent No. 6 as Commissioner, SECP is void2 ab initio. Secondly, the Respondent No. 6 does not have the requisite experience and expertise to be considered for the for the post of Commissioner, SECP, since she has mostly worked in her family business as opposed to any professional organization. Her total work experience in a professional organization is of 4 years when she worked as an Executive Director at SECP under the Chairmanship of Mr. Khalid Mirza, at the age of 32 years. It is pertinent to note that the aforesaid appointment of the Respondent No. 6 as Executive Director was also not based on merit as the Respondent No. 6 was clearly not qualified to be an Executive Director at the age of 32 and with no prior relevant experience. Hence, the Respondent No. 6's time in the SECP was only limited to the tenure of Mr. Khalid Mirza. Her other experience includes being posted as CEO of Pakistan Institute of Corporate Governance, which again was an appointment which was made due to the influence of Mr. Khalid Mirza who was then Chairman of the SECP policy board. As per Section 5 of the SECP Aci, the Commissioners shall be persons known for their “integrity, expertise, experience ‘and eminence in any relevant field”. Furthermore, Section 3(3) of the SECP Act states and emphasizes that it is the responsibility of the Commission to “promote, enhance and maintain independence of the Commission”, Therefore, the Respondent No. 6's appointment as Commissioner is in violation, inter-alia, of Sections 3(3) and 5 of the SECP Act. ). That without prejudice to the above, it is submitted that since her appointment, the Respondent No. 6 has blatantly abused and misused her powers and has shown her bias on numerous occasions as evidenced by the following examples. Firstly, the Respondent No. 6 has misused her powers by awarding regulatory approvals to certain organizations which she favours, and has unduly created hurdles in the licenses of her business rivals. Ina more recent move, she blocked ‘an important IPO by giving adverse comments, based on a personal bias against the directors of that company and the advisors of the IPO. It is submitted that the aforementioned actions of the Respondent No. 6 are blatant violations of the SECP Act. Secondly, the Respondent No. 6 has been involved in exploitingG. 2 % SECP"s resources by unilaterally increasing her personal perks and protocols. She has used her influence to enhance her monthly honorarium soon after becoming Commissioner which is a blatant violation of the provisions of the SECP Act, since the increments and other perks are due after at least 1 year of service. Moreover, the Respondent No. 6 has also claimed enhanced security, drivers and home staff at the cost of the Commission and of the tax payers of this, country. ‘That without prejudice to the above, it is submitted that under Article 199 of the Constitution of Pakistan, 1973, this Honourable Court has the authority to make ‘an Order requiring a person holding a public office to show under what authority of law he/she claims to hold that office. Therefore, it would be appropriate for this Honourable Court to inquire as to under what authority of law the Respondent No. 6 is holding office of the Commissioner, SECP. That without prejudice to the above, it is submitted that in light of the above- mentioned illegalities in the appointment of the Respondent No. 6 as Commissioner, SECP and the violations and abuse of powers carried out by the Respondent No. 6, an immediate inquiry should be conducted as per Section 19(2) of the SECP Act and the Respondent No. 6 be disqualified, inter alia, under Section 18(e) of the SECP Act. ‘That without prejudice to the above, it is submitted that the Petitioner has also submitted complaint dated: 04.01.2023 to the Federal Minister for Finance, wherein the aforementioned illegalities have been highlighted and it has been requested that an inquiry be conducted. However, neither has any action been taken by the relevant authorities on the basis of the aforesaid complaint nor has any response has been received by the Petitioner either.vl H, That it is most respectfully and humbly submitted that the Petitioner seeks the indulgence of this Honourable Court to raise further grounds at the time of the hearing of this Petit PRAYER It is, therefore, most respectfully and most humbly prayed that this Honourable Court may graciously pass judgment, and orders, in the following terms: (a) Declare that the appointment of the Respondent No. 6 as Commissioner, SECP, is illegal, unconstitutional, mala fide, and void ab initio; (6) Declare that the Respondent No. 6 is liable to be disqualified as Commissioner, SECP, under Section 18(e) of the SECP Act in light of her abuse of power and failure to disclose conflict of interest; rect that an inquiry be conducted into the appointment of, and abuse of powers by, the Respondent No. 6 with regards to her tenure as Commissioner, SECP, under Section 19(2) of the SECP Act; (€) Direct the Respondents to decide the Complaint dated: 04.01.2023 submitted by the Petitioner within a timeframe as decided by this Honourable Court: (f) Suspend the appointment of the Respondent No. 6 as Commissioner, SECP; (g) Grant such further, additional or alternative relief, as this Honourable Court may deem fit and proper;Karachi; Dated: 10" January, 2023 DOCUMENTS FILED: DOCUMENTS RELIED UPON: ADDRESS OF PETITIONER: ADDRESS OF PETITIONER COUNSEL: DRAWN BY ME eyes MK PETITIONER Wat! yaul ADVOCATE FOR THE PETITIONER As shown in the Petition ‘The abovementioned documents e.te. As per in ttle of the petition Mohamed Vawda Advocate, HC-14001/HC/KHI 14-C, 4" Floor, 21" Street, Off Khayaban-e-Seher, Phase VI, D.H.A., Karachi5 | IN THE HONOURABLE HIGH COURT OF SINDH AT KARACHI (CONSTITUTIONAL JURISDICTION) Constitution Petition No. 236 of 2023 a Javed Iqbal Buty, anssense ssesee+-Petitioner Versus Federation of Pakistan & Others..... eas Respondents AFFIDAVIT IN SUPPORT OF THE MAIN PETITION 1, Javed Iqbal (BurgyySon of (late) Muhammad Deen, Muslim, Adult, Resident/Office at Panorama Centre No. 2, 3" Floor, 316, Raja Ghazanfur Ali Khan ‘Road, Saddar, Karachi, do hereby state on oath as under: . That | am the Petitioner in this present case and I am well conversant with the facts of this case. 2. That the accompanying Constitution Petition has been drafted, instituted and filed under the instructions of the Petitioner, and for the sake of brevity, the entire contents of the accompanying Constitution Petition, may be read as a part S) of this Affidavit a 3. That unless the accompanying Petition is granted, the Petitioner will be gravely ot prejudiced, ats Se S e os 50" 9 OT 4, That whatever is stated above is true and correct to my knowledge and belief, Beato mast 4 and the Jaw as stated in the accompanying Constitution Petition is believed to be correct in view of the advice received from my counsel LOBED | BRBPECTED DOUBLE CAM) an eth HE f Deponent sbevenar jentified = ; Bats personaly now hie / Rar virGvent se et a idl . i y O Pn tere: