ISLAMABAD: As the new Haj season draws nearer, the Supreme Court has again been approached by private tour operators challenging a Lahore High Court (LHC) order of declaring the Haj Policy 2014 illegal.

A two-judge Supreme Court bench headed by Chief Justice Nasirul Mulk and Justice Dost Mohammad Khan will hear a set of appeals moved by the federal government as well as the Haj Organisers Association of Pakistan (HOAP) from Monday.

Filed by SCBA President Kamran Murtaza, the HOAP’s application has challenged the July 15 order of the LHC in which the Haj Policy 2014 was declared to be illegal to the extent of grant of quota of 15,000 pilgrims to private Haj tour operators.

The high court declared grant of quota of 15,000 pilgrims to private Haj tour operators illegal

The HOAP is a registered trade organisation duly recognised under the Trade Organisation Act with the Ministry of Commerce and incorporated with the Security Exchange Commission of Pakistan (SECP).

A similar Haj controversy had come up before the Supreme Court in 2013 when on Oct 9, the apex court had emphasised the need of framing the Haj policy well in time in a fair and just manner that should inspire confidence and evokes minimum criticism. The court had held that the Haj policy for the next year (2014) should be announced at the earliest after the conclusion of Haj.

The issue had cropped up when the Ministry of Religious Affairs and Interfaith Harmony had devised the policy under which a Haj quota of 179,210 for Haj 2013 was allocated by the Ministry of Haj, Kingdom of Saudi Arabia, of which 50 per cent had to be allocated to the Haj scheme and 50 per cent to the private scheme i.e., Haj Group Organisers (HGO) on the concept of public-private partnership.

In June 2013 when all arrangements were made by the government as well as private Haj organisers for Haj 2013, the government of Saudi Arabia reduced the quota by 20 per cent for each country in view of the construction work in Haram. Thus the quota for Pakistan was reduced to 143,368 from 179,210.

As a consequence the religious affairs ministry reduced the quota of private Haj as 60 per cent for the government Haj sponsored where 40 per cent for the private Haj scheme.

This raised hue and cry forcing the prime minister to constitute a high-powered ministerial committee for the negotiation with the HOAP.

After due consultation and deliberation it was decided that the Haj quota for 2013 would be utilised as 60:40 for the Haj 2013, but for the Haj 2014 an additional quota of 15,000 pilgrims would be given to the private Haj scheme in addition to their prescribed quota.

Consequently, a memorandum of understanding (MoU) was executed between the HOAP and the ministry.

Later, the government formulated the Haj Policy 2014 keeping in view the Supreme Court guidelines and also ensuring 15,000 pilgrims to the private scheme as per the MoU.

But, the LHC in its July 15 judgment held that the grant of quota of 15,000 pilgrims to the private Haj tour operators was without lawful authority and against the law. Therefore, according to the judgment, the government in the first instance would utilise the quota and if the respondent government is unable to perform its duty due to any reason this quota would be offered to all the registered tour operators of the ministry of religious affairs.

Now the petitioners have pleaded before the Supreme Court that the LHC had no jurisdiction to adjudicate upon the matter since no infringement of the human rights guaranteed under the constitution was agitated before the high court.

The petitioners also contended that as per the Supreme Court orders, the LHC exercising jurisdiction under Article 199 of the Constitution cannot interfere in the policy making domain of the executive.

They contended that the Haj policy 2014 was framed in February and thereafter the petitioner engaged the buildings, transport and the flight operations in accordance with their allocated quota as per Haj policy 2014. Moreover, the high court order is neither enforceable nor can be implemented because of the restriction placed by the Saudi government which bounds the allocation of minimum quota of 50 pilgrims to private tour operators.

Published in Dawn, July 20th, 2014