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| September 8, 2005 | Thursday | Sha’aban 3, 1426 |
FPSC ordinance: AG seeks time to file report
ISLAMABAD, Sept 7: The Lahore High Court’s Rawalpindi bench on Wednesday asked the federal government to submit detailed comments on a challenge to an ordinance promulgated by President Pervez Musharraf reducing the tenure of the chairman and four members of the Federal Public Service Commission (FPSC) from five to three years.
“Attorney General Makhdoom Ali Khan has sought time to file a report and parawise comments on behalf of respondent No. 1 (federal government). Within a fortnight, he may prepare the report therefore,” said Justice Mohammad Akhtar Shabbir in his order.
Justice Shabbir was hearing a joint petition of Gen (retd) Jamshaid Gulzar, FPSC chairman and members Gul Hanif, Justice (retd) Abdur Rehman Khan, Javed Akram and Tariq Saeed Haroon who have challenged the ordinance with a plea to stay its implementation, pending instant case. President Pervez Musharraf, Prime Minister Shaukat Aziz, the federal government through secretary, establishment division, law and justice have been named respondents in the petition.
Explaining as to why the president and the prime minister had been mentioned in the petition by name as respondents, senior advocate Akram Sheikh, the counsel for the petitioners, quoted Amanullah’s case in which a five-member bench of the Supreme Court had ruled that when mala fide allegations were levelled against any functionaries of the state, including the president or governor; they cease to enjoy immunity provided under Article 248 of the constitution.
Therefore the president and the prime minister having allegedly acted with mala fide intent, despite being the designated functionaries, had to be mentioned, he contended.
At this the attorney general argued that since the function performed by the president was legislative in nature, mala fide intent could not be attributed to legislative functions as decided in the Fauji Foundation case.
In response, Akram Sheikh contended that the ruling on the Fauji Foundation case had came at a time when fundamental rights were not in existence and were under suspension.
He stated that executive decisions were susceptible to judicial scrutiny, even if such powers were quasi-legislative in nature.
Mr Sheikh argued that FPSC members enjoyed security of tenure under Section 6 of the FPSC Ordinance 1977 at par with judges of the Supreme Court or of a high court and therefore could not be removed from office except in manner as provided in Article 209 of the constitution.
Their tenure, he emphasised, could not be curtailed by a subordinate law or through promulgation of an ordinance.
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