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| December 16, 2005 | Friday | Ziqa’ad 13, 1426 |
Judgment on FPSC ordinance reserved
ISLAMABAD, Dec 15: The Lahore High Court’s Rawalpindi bench on Thursday reserved its judgment on a petition challenging an ordinance promulgated by President Pervez Musharraf that slashed the tenure of the chairman and some members of the Federal Public Service Commission (FPSC).
Justice Mian Hamid Farooq reserved the judgment after hearing detailed arguments from Senior Advocate Akram Sheikh representing the petitioners and Attorney General Makhdoom Ali Khan.
Gen (retired) Jamshaid Gulzar, Chairman FPSC, and Members Gul Hanif, Justice (retired) Abdur Rehman Khan, Javed Akram and Tariq Saeed Haroon had challenged the FPSC (Amendment) Ordinance 2005, which reduced the term of their offices from the date of joining or till the time they reached the age of 65 years.
As a consequence the tenure of Gen Gulzar and Tariq Saeed Haroon was curtailed by two years.
President Pervez Musharraf, Prime Minister Shaukat Aziz, the federal government through Secretary, Establishment Division, Law and Justice were respondents in the petition.
During the hearing, the attorney general argued that since the function performed by the president was legislative in nature, mala fides could not be attributed to legislative functions.
Akram Sheikh, however, said the ordinance was a bad legislation for being a one man law and since it was not retrospective it could not apply on the incumbent petitioners.
Explaining as to why the president and the prime minister have been impleaded in the petition by name as respondents, Akram Sheikh quoted Amanullah’s case in which a five-member bench of the Supreme Court had ruled that when allegations of malafide of facts were levelled against any of the functionaries of the State including 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 malafide, despite being the designated functionaries, had to be impleaded, he contended.
Executive decisions, he stated, were susceptible to judicial scrutiny, even if such powers were quasi-legislative in nature.
Akram 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 the office except in manner as provided in Article 209 of the constitution.
Their tenure, he contended, could not be curtailed by a subordinate law or through promulgating an ordinance which, according to him, was discriminatory, based on ulterior motives and against the provisions of the Constitution.
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