ISLAMABAD: Soon after the retirement of Chief Justice of Pakistan Mian Saqib Nisar, former federal information minister Pervaiz Rasheed has sought a review of the Supreme Court’s judgement of Nov 8, 2018 that requires recovery of a hefty amount from him for his role in the appointment of playwright and columnist Ataul Haq Qasmi as chairman and director of Pakistan Television on a handsome package of Rs1.5 million excluding perks.
While holding the appointment of Mr Qasmi as illegal and the payment of salary and/or allowances to him as unlawful, the judgement had ordered recovery of Rs197.8 million from the columnist, Mr Rasheed, former finance minister Ishaq Dar and then secretary to the prime minister Fawad Hasan Fawad.
A petition moved by Advocate Munawar Iqbal Duggal on behalf of Mr Rasheed said: “The Nov 8 verdict is beyond the scope of Article 184(3) of the Constitution that confers jurisdiction only in terms of fundamental rights of public importance.”
“If the scope of Article 184(3) is extended to this limit, then the Supreme Court will be assuming powers of all lower courts and public authorities and making them redundant, which is not at all the intent of this article,” the petition contended.
“This approach will open a floodgate of cases in the apex court as every matter [under] this definition is a matter of fundamental right of public importance and no such demarcation is possible,” the petition said.
“This extraordinary original jurisdiction has to be used sparingly and in extreme cases, that too within defined parameters in the interest of certainty and right to a fair trial, especially when there is no appeal provided against exercise of this extraordinary jurisdiction.
“It is a fundamental principle of Islamic and common law, from which our jurisprudence seeks guidance, that every decision is appealable as a judge is presumed to be fallible,” the petition argued.
It recalled that no appeal was provided against the exercise of jurisdiction under Article 184(3). In view of the well-established doctrine of fallibility of a man or a judge, great care should be exercised in invoking this power in matters where no calculation or appreciation of evidence was required.
Mr Rasheed’s petition contended that penalties and recoveries in the nature of penalties had been imposed in the case under jurisdiction of Article 184(3), that too, “without any fair and proper trial or giving a fair chance to explain the liability”.
It added that recoveries had been “imposed arbitrarily and selectively... on some officials and persons involved in appointment of Mr Qasmi that violated articles 4, 9, 10, 10A, 14, 18, 23, 24, 25 and 248 of the Constitution”.
“The Nov 8 verdict is also against the letter and spirit of Article 248 which provides protection to the actions performed by him as a federal minister,” the plea argued.
Since Mr Qasmi had ceased to hold office before the apex court had taken cognisance of the matter, a “writ in nature of certiorari or quo warranto under Article 199 read with Article 184(3) could not be issued to invalidate the appointment... and subsequent penalties ordered to be paid by him as a minister”, the petition said.
Article 184(3) could not be exercised in such a way that it had consequences for the past rather any judgement under it should have future effects, said the petition. “In other words, declaration of appointment as illegal and payment of penalties/recoveries is not a judicious exercise of the jurisdiction under this extraordinary jurisdiction.”
The Nov 8 judgement was also contrary to the principles declared in innumerable verdicts, when an appointment was declared null and void ab initio but no recovery was ordered, the petition argued.
In this regard, it cited the example of appointment of more than 100 high court judges that was declared illegal and void but no order was passed for the recoveries of their salaries and consequential losses occurring due to their orders. “Rather, the illegally paid pensions to some of them were protected.”
“Thus, for the first time the principle has been laid down that... the information minister is liable for all the actions of the appointee [PTV chairman],” the petition said, adding the order would have far-reaching consequences.
Published in Dawn, January 20th, 2019