Wednesday Dec 05 2018

A constitutional dilemma

An interesting legal proposition has cropped up before the Islamabad High Court (IHC), which has begun adjudicating a case for the reinstatement of 269 employees of the Pakistan Agricultural Research Council (PARC).

The employees were sacked in May 2011, on the allegations that they were appointed illegally, without advertisements, by the then-chairman of the council. Many, it was claimed, did not meet the qualification and experience requirement. Outraged, the employees went to court where their petitions were dismissed. However, on May 2, 2012, Prime Minister Yousaf Raza Gilani reinstated the men on the recommendation of a cabinet sub-committee. The PARC then served the reinstated employees with show-cause notices and called into question the said reinstatements as being illegal and having been made ignoring irregularities, which formed the basis of the termination in the first place.

In the meantime, the Supreme Court disqualified Gilani and further declared all actions undertaken by him, between April 26 and June 19, 2012, as unconstitutional. The then-president passed a Validation Ordinance, 2012 to provide constitutional cover to orders issued by Gilani. However, the Ordinance failed to attain the status of an act from the national assembly. In the absence of a parliamentary assent, an ordinance is only a temporary statute that expires, as per Article 89 of the constitution. But there is also Article 264, which can save that which has been duly done under a repealed statute.

Later, the Supreme Court of Pakistan corrected the contradiction. It ruled that Article 89 is to be viewed as an exception to Article 264. So now, the actions of the prime minister lack constitutional sanctity as held by the Court.

In a 2012 case, the Court held that the unconstitutional actions of Gilani can be ratified by the parliament alone. So, the question then arises, that in the 120 days, in which the Ordinance 2012 was a valid statute, can it be said that the Ordinance was sufficient to provide the necessary constitutional sanctity?

It appears that any constitutional cover provided by the Ordinance 2012 lapsed after 120 days.

The only possible escape for Gilani could have been the de-facto doctrine. The doctrine, as held by the Court in a judgment reported as Fahad Malik v. Pakistan Medical and Dental Council in 2018, is invoked in favour of those public functionaries who act bona fide in the belief that they are legally entitled to perform actions, and whose legal status is not a concern. However, the doctrine cannot be invoked in utter disregard for the rule of law.

That said, in my opinion, this doctrine might not be able to provide constitutional cover to restore the jobs of the PARC employees who were sacked, as the employment matters cannot be treated as policy matters. As, in the case of the Pakistan Medical and Dental Council, the Court only applied the doctrine to the day-to-day activities of the Council and not to the appointments made by it.

Since the Ordinance 2012 does not protect the actions of the former prime minister and the doctrine is inapplicable, the PARC employees will likely have to pack up and go home.

Barrister Pansota is an Advocate High Court, practising in Lahore. He tweets @ pansota1

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