LAHORE, Dec 6: The National Assembly Standing Committee on Education has full authority to inquire into the conduct of Federal Board of Intermediate and Secondary Education (FBISE) officials and proceed against them under the law and the rules.

“That has nothing to do with Justice Abdul Hameed Dogar and no court can, directly or indirectly, impede that inquiry,” former Supreme Court Bar Association president Aitzaz Ahsan said in his letter written to Abid Sher Ali, the chairman of the National Assembly standing committee on education.

Discussing the jurisdiction of the committee, Aitzaz said the Constitution was supreme and its letter had to be obeyed. The freedom of expression and right to vote in parliament or any committee of the parliament were guaranteed by Article 66 of the Constitution.

The limitation to discuss the conduct of any judge of a superior court was restricted, under Article 68 of the Constitution, to his conduct "in the discharge of his duties", he added.

Under Article 69, he said, the validity of any proceedings in the parliament or any committee could not be called in question on any grounds of irregularity of procedure in any court nor shall any officer or member, who had jurisdiction to regulate procedure or conduct of business (the chairman, for instance), be subjected to the jurisdiction of any court.

He said Clause (5) of Article 66 and Clause (3) of Article 69 were of particular significance as these equated a committee with parliament itself. He further explained that with respect to the Rules, the "matter pending before any court" envisaged by clause (o) of Rule 111 read with Rule 241 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, the matter must be inter-parties and not any incidental, collateral or contrived proceeding.

Since Justice Abdul Hameed Dogar was not a party to any proceeding (him having no immunity in matters of alleged personal delinquency), there was no bar to proceedings in the committee on this ground, Aitzaz maintained.

Giving his legal opinion, he said the matter could be simplified by addressing two key questions; first, whether Justice Dogar's alleged conduct was "in the discharge of his duties" as judge?, and second, could the committee be impeded from inquiring into the actions of FBISE officials as to any illegal benefit provided to any candidate?

Answering these questions, he said Justice Dogar's alleged action of obtaining an increase in the marks of his daughter was not "in the discharge of his duties" as judge of the Supreme Court (or even as 'Chief Justice' if he be recognised in that capacity).

If correct, it was an entirely personal action motivated by personal interest and not a judicial function. If any thing, it was a travesty of justice and of the rights of more deserving young citizens of the country, he emphasised.

Moreover, the inquiry revolves around the actions of the FBISE and its officials. If Justice Dogar was not involved, and has had nothing to do with the matter, he and his colleagues should have not been bothered by the inquiry and they should have not concerned themselves with it.

Things became suspicious when he took special interest in the matter as when he marked the appeal to Justice Zawar Hussain Jafri which could only be assigned to the judge by (Chief) Justice Dogar, the letter added. The alleged pendency of the said unrelated petition was also no bar under the Rules, he added.

Barrister Aitzaz said that the standing committee was thus well within its powers to inquire into the matter and was immune from liability or restraint by any court.

In fact, Justice Dogar could be summoned indeed to appear before the committee as none of his actions "in discharge of his duties" was under scrutiny before the committee.

A judge who committed a murder or a robbery could not be declared above the law only because he was a judge. He had immunity, no doubt, but only with respect to conduct "in discharge of his duties." This allegation (if true) was not in discharge of any such duty, Aitzaz added.

He suggested that if Justice Dogar (or even the Supreme Court registrar on his behalf) opted writing to the committee and expressly stating that the judge took no personal interest in the matter and that it might be examined freely and on merits by the committee, without let or hindrance, that his name, therefore, be not brought into the matter, then out of respect for the principle of comity and independence of the institutions, each with its own respective constitutional authority, the matter might have been proceeded without the necessity to require his presence before the committee. That might have been the best course under the circumstances, he added.

Aitzaz also offered his further advice and elaboration of his opinion upon his return to the country.—Staff Reporter