ISLAMABAD: The judiciary’s independence will be in jeopardy if parliament starts violating fundamental principles by reversing court decisions, Justice Syed Mansoor Ali Shah said in his remarks on Wednesday during the hearing of a set of petitions seeking review of the Supreme Court’s Aug 17 judgement which rendered almost 17,000 government employees jobless.

The observation came after senior counsel Sardar Latif Khosa stated that the real purpose behind enacting the Sacked Employees (Reinstatement) Ordinance Act 2010 (SERA) was to end the “political culture of victimising employees” appointed by the PPP governments because “we understand the pulse of the nation”.

The counsel, who represents the State Life Insurance Corporation and the Sui Northern Gas Pipelines Limited (SNGPL) in the case, said the PPP government was committed to reinstating the employees through a legislative instrument.

He recalled that military governments had even removed judges, but it was the PPP which restored their services through executive orders.

“Today a large number of people are waiting outside the Supreme Court, but nobody except for parliamentarians reaches out to them,” the counsel argued.

On the eve of his retirement, Justice Mushir Alam had on Aug 17 declared as illegal and unconstitutional the PPP-era law, the Sacked Employees (Reinstatement) Ordinance Act 2010, under which thousands of individuals were employed or promoted.

But the Supreme Court bench took exception to their “reinstatement through a special law enacted by parliament in disregard of others employees”, recalling that the courts had turned down a number of petitions seeking repeal of the sacking orders.

The appointment or reinstatement of the employees should have been done after meeting certain conditions, the court said. The law in question (SERA) never cited instances of victimisation as reason for reinstating the employees.

Justice Umar Ata Bandial, who headed the Supreme Court bench, said it was unfortunate that SERA treated the termination of services as a ground for regularisation of these employees in 2009 and 2010.

Attorney General (AGP) Khalid Jawed Khan proposed that the Supreme Court consider only those cases that concerned employees who were reinstated through SERA and return the cases of those who were reinstated through previous ordinances to the high courts concerned.

But it was Advocate Shahbaz Khosa, the son of Sardar Latif Khosa, who swung the course of the case when he said most of the employees were reinstated through previous ordinances and though ordinances lapse one after the other, the benefit enjoyed by the employees were protected under Article 264 of the Constitution through the 18th Amendment.

“The provision ensures that the repeal, or lapse, of a law will have no effect to any right, privilege, obligation accrued under the previous law.”

Shahbaz Khosa emphasised that his case was pending before the Sindh High Court, but the departments concerned dismissed some of the employees only because of the Aug 17 Supreme Court judgement.

Shahbaz Khosa argued that Article 8 of the Constitution had laid down that no law could be struck down in toto. Only those sections could be declared illegal which violate fundamental rights.

Justice Shah, however, observed that the court would have to determine what effect the repeal of the act would have on the vires of the ordinance since the pith and substance of the two legal instruments were identical.

Justice Bandial asked the attorney general to assist the Supreme Court in pre-determining the impact of declaring SERA illegal on the employees reinstated through ordinances.

He also asked the AGP to assist the bench in determining whether the due process was carried out before induction of the employees.

Justice Bandial said the counsel representing the Intelligence Bureau (IB) and the SNGPL had argued that their clients had come up to the criteria for appointment.

But if it was found that some of the selected were not up to the mark, Justice Bandial wondered, would it amount to violation of Article 25 of the Constitution, which ensures equality of citizens.

The hearing will resume on Thursday (today).

Published in Dawn, December 9th, 2021

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