While accepting Attorney General for Pakistan request for more time to commence arguments in response to plea seeking restoration of Dr Tariq Banuri service as Higher Commission Chairman Wednesday the Islamabad High Court adjourned the matter for August 11. The court also restrained the federal government from appointing a new HEC chairman till the next hearing.
Identical petitioners including Mosharraf Ali Zaidi and others have made federal government respondent in the matter urging the IHC to declare government notification of removal Dr Banuri as Chairman HEC malafide, illegal, and issued without jurisdiction.
A division bench of the IHC comprising Chief Justice Athar Minallah and Justice Aamer Farooq on Wednesday resumed hearing of the case. During the proceedings, Attorney General for Pakistan (AGP) Khalid Javed Khan requested the court to adjourn the matter saying he has to leave in 20 minutes to attend a scheduled meeting of the Judicial Commission of Pakistan. Responding to the query of the Chief Justice Athar Minallah to complete arguments in the matter the AGP submitted, “I can barely preface my argument in 20 minutes” .
It is pertinent to mention that the present government terminated the services of the HEC Chairman Dr Tariq Banuri by promulgating an Ordinance on 26 March 2021. This was again replaced by an amended Ordinance on 7 April 2021 as the first one had serious legal lacunas in terminating Dr Tariq Banuri. The tenure of the HEC Chairman is protected under the original HEC Ordinance governing his appointment. The court was apprised that the notifications were issued with malafide and person specific and thus inherently flawed.
The case was well attended with the courtroom full as the hearing began with the AGP contending that the case was no longer justiciable as the Ordinance has already been tabled in the Parliament for legislation. However, the AGP submitted that the president of Pakistan acts upon the advice of the Cabinet and has no authority to initiate legislation on his own.
Interestingly, former federal minister Ahsan Iqbal of the PML-N and former Chairman Senate Farooq H. Naek of the PPP also approached the court and made brief submissions with the permission of the Chief Justice. They admitted that the tradition of legislation by Ordinances was a sorry one and requested the court to the aid of the legislation.
During the hearing, brief respite with broad smiles was enjoyed in the courtroom when the Chief Justice Minallah asked Ahsan Iqbal and Farooq H. Naek how many Ordinances their governments promulgated observing it was now the turn of the new government to enjoy that privilege!
“Two wrongs do not make a right”, said Senator Ahsan Iqbal candidly admitted that the track record of their government was not good when it comes to legislation with Ordinances. Farooq H. Naek also made similar observations.
Addressing both the political leaders, the Chief Justice observed the legislators should not depend upon the courts and make sure legislation cleans up the legal confusion around the justification of emergency in issuing ordinances.
Another interesting exchange took place between the AGP and the IHC CJ whether or not the government can legislate through Ordinances, place these before the Parliament for approval and then tell the courts it is no longer justiciable. The CJ asked if the government could promulgate an Ordinance reducing the strength of the IHC judges and then place that before the Parliament and pass the law. The AGP, however, explained that the independence of judiciary is guaranteed in the Constitution but the same is not the case with the HEC which is merely a statutory body.
The CJ observed, “Higher Education can be done away with” and asked if the HEC could be abolished by legislation altogether?. The AGP submitted, “yes”. To this the CJ observed that this means you can also abolish the HEC with an Ordinance and then place that Ordinance for legislation before the Parliament and tell the courts it is not justiciable”.
Later, the bench adjourned hearing of the matter till August 11.
