ISLAMABAD: The federal government on Monday pleaded before the Supreme Court that different sugar mills intended to prevent the federal and provincial governments from performing their respective statutory duties on the prices of sweetener.

As the SC resumes on Tuesday (today) hearing of the government’s appeal against the Sindh High Court’s June 23 order to stay the operation of the sugar inquiry commission report, the federal government in a synopsis stated that if the contention of the sugar mills were to be accepted, no authority would ever be able to take any action against any party on the apprehensions that it may adversely affect its name, business and reputation.

It contended that the safest course to keep the name, reputation and business intact was to avoid commission of alleged illegalities, manipulation, double record keeping and evasion of taxes etc.

Senior counsel Makhdoom Ali Khan and Salman Akram Raja representing the sugar mills, however, argued that the federal government’s appeal was not maintainable and that there was nothing extraordinary about SHC’s interlocutory order and that its exercise of discretion was neither abusive nor wanton.

Federal govt says millers want to stop govt from checking price

On Feb 20, the government constituted an inquiry committee to probe into a sudden hike in sugar price and shortage of the commodity across the country. It was asked to ascertain if the production this year was less than past years, if the low produce was the prime reason for price hike and whether the minimum support price was sufficient.

On May 21, the commission delivered its report identifying potential violations of laws by different manufactures of sugar and others acting in collusion or in concert with the manufacturers of sugar thereby being liable to possible legal action(s) or proceedings as warranted under different statutes.

On June 10, the Pakistan Sugar Mills Association (PSMA) moved petitions before the Islamabad High Court (IHC) against the constitution of the inquiry commission and its report. Later, they approached the SHC.

Moved through Attorney General Khalid Jawed Khan, the preliminary submissions before the apex court rejected sugar mills claims that the commission members were biased as they had formed adverse opinion earlier. This was a misconceived submission as the members of the committee had neither formed any final opinion nor even completed the probe, the federal government argued, adding that they were the most qualified persons to be appointed members of the commission.

The complexion of the commission was similar to the line earlier adopted by the apex court in other cases where Joint Investigation Team was constituted by the court. The constitution of the commission was lawful and indeed fully warranted, the report explained.

The federal government highlighted that the instant matter related to the fundamental rights of the people, in particular the right to life under Article 9 of the Constitution, which includes the right to have access to essential food items to sustain their lives at a reasonable and affordable cost without being charged exorbitant amount for such items.

Referring to the arguments by the sugar mills that the federal government lacked competence since the provincial government could have formed the commission, the federal government explained that the terms of reference (ToRs) of the commission was not only trans-provincial in character, it also fell under the Entries 6, 7, 27, 48, 49, 57 and 58 of the Part 2 of the Fourth Schedule to the Constitution.

About the delayed publication of the notification regarding the commission in the gazette, the government said sugar mills were fully aware about the constitution of the commission and the PSMA even interacted with the commission during the probe and exchanged correspondence. Thus it was in the knowledge of the stakeholders, including the sugar mills, and therefore it could not be challenged on the grounds of non-publication of the notification in the gazette, the federal government argued.

PSMA independent juristic person

The sugar mills contended that the Sindh High Court had territorial jurisdiction in the matter as the respondent sugar mills and their offices were located in Sindh. They said they were at liberty to challenge the constitution of the commission, the manner in which it conducted the inquiry, its report and all actions of the federal government that affected them.

Citing a number of judgments, the sugar mills contended that it had been the consistent practice in Pakistan that persons aggrieved by actions of the federation could challenge the action before a high court in whose territory it affected them. Therefore, the submission of the federation runs against the invariable jurisprudence of the Supreme Court and as a consequence its appeal should be dismissed with cost.

The petition before the IHC could not have been filed and was not filed in representative capacity, the sugar mills contended, stating that the PSMA was a separate and independent juristic person and could sue and be sued in its own name. It had no locus standi to file a constitutional petition under Article 199 of the Constitution on behalf of the member mills.

They argued that the sugar mills were not parties to the petition before the IHC. They said a number of adverse observations were made against the PSMA in the commission’s report and being aggrieved by these observations, the PSMA filed the petition and was not acting as representative of the respondent sugar mills.

Published in Dawn, July 14th, 2020