While hearing plea seeking restoration of Dr Tariq Banuri as Chairman Higher Education Commission , Islamabad High Court Chief Justice Athar Minallah on Wednesday observed the challenge to the new Higher Education Commission Ordinance was a jurisprudential issue.
He expressed in response to Attorney General for Pakistan Khalid Javed Khan who raised a question whether the court interfere in the process since the HEC Ordinance has since been laid before the National Assembly as a Bill awaiting legislation.
A division bench of the IHC comprising Chief Justice Athar Minallah and Justice Aamer Farooq was hearing identical petitions of Mosharraf Ali Zaidi and others urging the IHC to declare government notification of Dr Banuri’s removal as Chairman HEC illegal and issued without jurisdiction. AGP Khan was responding to a plea in the IHC seeking restoration of Dr Tariq Banuri as Chairman Higher Education Commission (HEC). “The Ordinance has been extended by the Parliament for another 120 days,” he told the bench. “Would the court wish to interfere in the legislative process?” the AGP submitted.
This was immediately countered by the appellant counsel Faisal Siddiqi. The mere act of tabling an ordinance in the parliament cannot limit the judicial review jurisdiction of the court, he said adding, “tomorrow they may terminate all the judges of the high court by issuing an ordinance and then table that in the parliament pleading the courts have no jurisdiction”.
The court listened to the AGP patiently for over one hour as he finished his arguments. He began by withdrawing the letters he had submitted to the court a day earlier with a request to treat these as confidential. With the permission of the court he substituted these with a booklet shared with the defence. He read passages from the new materials justifying the need and elaborating upon the process leading to legislation by Ordinace to wrought changes pursing the mission of the elected prime minister. “Tariq Banuri may be brighter than me. He may have a degree from Harvard. But it is the prime minister who will held accountable before the people and not the Chairman HEC, he argued.
Strangely enough, the AGP then went on to forward arguments claiming the impugned HEC Ordinance was not person specific. And in the next breath, asserted that it was the right of the prime minister to appoint his how team at the HEC. Appellant counsel Siddiq agreed with the AGP saying the government can even bring person specific legislation but asserted it must then justify reasonably.
When the court inquired about the dates of the meeting and asked whether a session of the Parliament was called by the President before the issuance of the impuged ordinance, AGP Khalid Javed Khan held an ordinance has never been struck down by the courts on the grounds of emergency justification alone. CJ Minallah asked if that would mean the tenure of the HEC Chairman was reduced to two years and the AGP said yes and argued that it was perfectly legal to curtail the tenure as there were precedence in the past upheld by the courts.
The Bench observed that the Chairman HEC was but one of the members and the Commission comprises of all the members but only the Chairman was removed while the tenure of no other member was affected. “There is no change save the change of the Chairman”, the CJ observed adding, “Has the chairman veto powers.” It is pertinent to recall the Pakistan Tehreek-e-Insaf (PTI) government removed HEC Chairman Dr Tariq Banuri by promulgating an Ordinance on 26 March 2021. This was withdrawn as it had serious legal lacunas and was followed by an amended Ordinance on 7 April 2021 that changed the protected tenure of Chairman HEC from four to two years.
Former Governor KP Shahid Hamid could not be heard today but the court will hear him on the next date. He was part of the legislature that designed the original law with a protected tenure for the Chairman HEC. The bench adjourned hearing till September 21, next Tuesday asking the AGP to provide a comparative tabulation of the language the HEC Act and the two new Ordinances.
