ISLAMABAD: Both the government and the judiciary appeared on Friday to have backed away from their hardline positions on the transfer of a senior bureaucrat.
Attorney General Maulvi Anwarul Haq informed the Supreme Court that he had failed to meet Prime Minister Yousuf Raza Gilani to discuss the transfer of former establishment secretary Sohail Ahmed and needed more time.
Ending the proceedings within half an hour, the Supreme Court bench took a couple of hours to issue an order that gently threw the ball back into the government’s court.
The six-judge bench hearing the Haj scandal case ordered that Mr Ahmed, who had been sent down from the prestigious post to an officer on special duty (OSD), should be given a post — any post — within seven days.
It said that Hussain Asghar, the Inspector General of Police in Gilgit-Baltistan, should be reinstated in the Federal Investigation Agency (FIA) whenever he was relieved from his current post.
Former law minister Babar Awan said the government would respect and implement the orders of the Supreme Court.
The attorney general described it as “a beautiful order” that would go a long way in defining the domain of both the judiciary and the executive.
Talking to reporters, he said he would contact the Gilgit-Baltistan police chief later in the day and that he would be re-assigned as FIA director to resume the Haj scandal investigation.
Sohail Ahmed had been made an OSD after he issued a notification without the consent of the prime minister to bring Mr Asghar back to the post of FIA director.
The court accepted the prerogative of the chief executive in matters of transfer and posting of senior government officers, but held that the July 26 notification of relegating Sohail Ahmed to a sinecure post of OSD was unsustainable in the eyes of law.
The notification will cease to exist and Mr Ahmed will resume his post as establishment secretary if he is not posted to any other position within the stipulated time.
The detailed order dictated by Chief Justice Iftikhar Mohammad Chaudhry encompassed the entire chain of events in the Haj scandal and cited the landmark judgment of holding the act of former military dictators of proclaiming emergency as illegal to establish that the Supreme Court believed that the democratic dispensation must prevail.
It noted that through the July 31 judgment the court had saved the oath of President Asif Ali Zardari to protect the system and avoid chaos.
The court ordered FIA Director General Tehseen Anwar Shah to provide every facility, including relocating the earlier investigative team under the command of Mr Asghar, as soon as he reported to him.
Citing three conditions from the Civil Establishment Code and Efficiency and Discipline Rules of 1973 which needed to be met to relegate officers to the position of OSD, the court held that none of those existed in the case of Sohail Ahmed.
We wish the prime minister had given us some reaction on the issue which the court had sought through the AG, the order said and conceded that the competent authority had the power to transfer or post officers to any position, but under certain conditions.
In the absence of any reaction from the prime minister, the court said, it was compelled to pass the order because it could not let a straightforward and upright officer to suffer.
Highlighting the fact that a capable officer should not be penalised, it cited a number of judgments from foreign jurisdiction to establish that the competent authority could at best transfer the officer to any other position instead of demoting him to OSD.
The court made it clear that it had all the respect for parliament and the executive for they made laws and then left them to the court for interpretation.
It praised the role of parliament in adopting the 18th and 19th Amendments.
It said the executive was required to perform its well-defined functions, but the purpose of initiating proceedings in the Haj scandal was to ensure that corrupt practices should be checked.
The court said it had the right to review any administrative action of the executive and there were thousands of cases in which it had exercised jurisdiction and acted as the final arbiter of check and balance.
“This is the reason that the independence of judiciary is guaranteed in the Constitution,” the order said, emphasising that the court could not compromise its independence and had asserted it many times in the past especially after Nov 3, 2007.
Referring to the exercise of jurisdiction by the Supreme Court, the order referred to the 1996 Hawala case in which the Indian Supreme Court had taken over the charge of the CBI to ensure that the investigation of the corruption case was carried out under its supervision.
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