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Petitioner: Saira Rubab Nasir, etc VS Respondent: President of Pakistan, etc
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: Saira Rubab Nasir, etc vs President of Pakistan, etc Case No.: Writ Petition No. 3800, 3777, 3825, 3837, 3901 -and 3905 of 2019 Date of Judgment:2020-02-11 Reported As: 2020 IHC 28, PLJ 2020 Islamabad 195, 2020 [M] C L R 1232 Result: Petition allowed
JUDGMENT
JUDGMENT MOHSIN AKHT AR KAYANI, J.-- Through this common judgment, I intend to decide all the captioned writ petitions arisen out of common question of law, whereby vires of Pakistan Medical Commission Ordinance, 2019 have been assailed alongwith notification of appointment of respondents No.5 to 13 in (W.P. No.3800/2019) being members of the Pakistan Medical Council. 2. Brief and consolidated facts referred in captioned writ petitions are that the President of Pakistan in exercise of powers under Article 89 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution ") has promulgated Pakistan Medical Com mission Ordinance, 2019 (hereinafter referred to as "PMC Ordinance, 2019 ") on 20.10.2019 in violation of fundamental rights of the petitioners guaranteed under the Constitution as the Federal Government has not put forward any, advice before promulgation of the said law in terms of case reported as PLD 2016 SC 808 (Mustafa Impex Vs. Government of Pakistan ) and as such, the President has not achieved the satisfac tion required before promulgation of the PMC Ordinance, 2019. Even otherwise, the President/Federal Government earlier promulgated PMDC Ordinance, 2019 and the matter was placed before the Senate by considering the same as bill, but the same was disapproved, however the President of Pakistan has again promulgated identical provisions of the said disapproved PMDC Ordinance, 2019 in the shape of PMC Ordinance, 2019 having same preamble as that of the disapproved PMDC Ordinance, 2019 despite the fact that the apex Court in its recent pronouncement reported as 2018 SCMR 1956 (PMDC Vs. Fahad Malik ) declared the re-promulgation of an similar/identical ordinance as fraud as requirement of Article 89 has not been applied before re-promulgation. Furthermore, under the PMC Ordinance, 2019, respondents No.5 to 13 have been appointed as Members of Pakistan Medical & Dental Council (hereinafter referred to as "PMDC") in pursuant to notification dated 23.10.2019 without observing any criteria for selection at the touchstone of merits, eligibility and other standards highlighted by the superior courts, but the Ministry of National Health Services, Regulations and
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Coordination (Respondent No.2) has constituted an Advisory Committee, which comprises of the same persons who were Members of the erstwhile PMDC under the PMDC Ordinance, 2019, whereby the Advisory Committee was encouraged to assume the role of the PMDC in violation of Section 6 of the PMDC Ordinance, 2019. Similarly , under Section 49 of the PMC Ordinance, 2019, the services of petitioners/employees of the PMDC have been terminated without serving any prior notice in this regard. Hence, the captioned writ petitions. 3. Learned Counsel for petitioners in their respective captioned writ petitions have argued their grounds, which are as under: (i) PMDC Ordinance, 1962 having the status of permanent legislation was updated and comprehensively amended by the PMDC Act, 2012 i.e. an Act passed by the Parliaments and its Standing Committees after due debates, which has unlawfully been repealed by the impugned legislative instrument i.e. PMC Ordinance, 2019 in violation of Article 70 of the Constitution (ii) Federal Government has acted in haste in the interregnum period of two sessions of Parliament only to defeat the principle of parliamentary supremacy and promulgated the impugned Ordinance without fulfillment of legal requirements; (iii) the Government is not free to dispense with the state authority in whimsical and arbitrary manner4 especially in the light of PMC Ordinance, 2019, whereby fundamental rights of petitioners to work have been 'revoked in violation of fundamental guarantees required to be applied in such type of cases; (iv) in terms of Article 89 of the Constitution the President is required to satisfy that circumstances exist which render it necessary to take immediate action which leads to promulgation of ordinance, however the concept of satisfaction is subject to judicial review in shape of scrutiny by this Court; (v) the apex Court in recent pronouncement reported as 2018 SCMR- 1956 (PMDC vs. Fahad Malik ) has examined and interpreted the power of the President to promulgate Ordinances under Article 89 of the Constitution, whereby it was interpreted that the President cannot be accepted as a parallel source of law making and re- promulgation of Ordinances especially when the earlier identical or somewhat identical Ordinances had been disapproved or not approved; (vi) Members of the PMPC have been appointed as per Section 4 of the PMC Ordinance, 2019 without any advertisement, transparent process or declared criteria; (vii) The Registrar as well as Director Finance of the PMDC being appointed under the repealed PMDC Ordinance, 2019 continue to function as instruments for the Ministry of National Health Services, Regulations and Coordination, which is in violation of recent judgment of the apex Court reported as 2018 SCMR 1956 (PMDC vs. Fahad Malik ); (viii) promulgation of the impugned PMC Ordinance, 2019 is in utter violation of the provisions of Constitution, including Article 8 of the Constitution, which states that any law inconsistent with or in derogation of the fundamental rights is void; and, (ix) in terms of Section 49 of the impugned PMC Ordinance, 2019 the petitioners/employees of PMDC have been deprived of their fundamental rights including the right to earn livelihood together with the socio-economic rights as envisaged in Articles 9 and 14 read with Articles 2-A, 3, 4, 24, 25 and 37 of the Constitution; 4. Conversely , Additional Attorney General contends that all the captioned writ petitions are not maintainable as constitutionality has to be presumed in favour of PMC Ordinance, 2019, which was promulgated in terms of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973 and vires of the Constitution could not be assailed in terms of Article 69 of the Constitution as PMC Ordinance, 2019 has been laid down before the Parliament as a bill, therefore, intervention/interference in the legislation process is considered to be violation of constitutional mandate; that Parliamentary sovereignty must not be limitized by the act of judicial review as propriety , expediency and necessity of legislative act has to be determined by the legislative authority and not by the Courts as held in PLD 2014 Peshawar 210 (Badshah Gut Wazir vs. Government of KPK ); that petitioners were employees of PMDC and are not civil servants, Lather they were employees of autonomous body without any statutory rules and their terms and conditions of service could only be settled by contract, which protects their rights and as such, no clog could be placed upon the presidential authority from the promulgation of ordinance including the action taken by
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the President in terms of Section 49 of the PMC Ordinance, 2019; that Special Committee on Pakistan Medical Ordinance Commission was constituted by the Government comprising of all parties including PTI, PML(N), PPP, BAP, MQM, GDA and JUI vide letter dated 20.12.2019 for settlement of differences amongst the different political parties and as such. the courts cannot entered into these questions, which are only meant for legislation. 5. Similarly , learned counsel for PMC and respondents No. 5 to 13 contended that the entire issue relates to erstwhile PMDC, which is now under legislative process with the Parliament and PMC Ordinance, 2019 is converted into a bill and as such, any verdict of this Court might affect the working of the Parliament; that courts have to show restraint while adjudicating the matters, pending with the Parliament on the touchstone of principle of subjudice and doctrine of rightness; that all the questions relating to terms and conditions of service of erstwhile PMDC employees will be dealt by the Parliament while considering the constitutional guarantees, however , at this stage, Section 49 of PMC Ordinance, 2019 extends protection to the employees in shape of six (06) months' salary and the same has been released in their favour without performing any duty from the date of promulgation of the Ordinance; that the reason for re-promulgation of PMC Ordinance 2019 is the conduct of employees involved in nefarious activities and bringing bad name' to the erstwhile PMDC, due to which all the employees have been removed through promulgation of PMC Ordinance, 2019 and as such, the protection available to Ordinance in terms of Article 89 of the Constitution could not be called in question through any court of law, therefore, the writ petitions are not maintainable; that if the Ordinance, if not extended by the Parliament, loses its effect on expiry of 120 days, and as such, the status of employees stand restored by efflux of time, therefore, judicial propriety demands that this Court may not pass any verdict regarding constitutionality of the PMC Ordinance, 2019. 6. Arguments heard record perused. 7. Perusal of record reveals that all the petitioners have assailed the vires of the Pakistan Medical Commission Ordinance, 2019 along with its contents and structure in the manner in which it was re-promulgated on the touchstone of Constitutional guarantees provided to the citizen of Pakistan. In the captioned writ petitions i.e. W.P. No.3800/2019, W.P. No.3777/2019, W.P. No 3825/2019 and W.P. No.3837/2019, all the petitioners/employees of erstwhile PMDC have been deprived of their right to employment in terms of Section 49 of the PMC Ordinance, 2019, whereas in other captioned writ petitions i.e. W.P. No.3901/20I9 and W.P. No.3905/2019, the vires of the Ordinance have been challenged regarding establishment of Council together with the appointments of Members of Council to regulate the affairs of PMDC on the ground that the very appointment of those members is in violation of settled principles as no subjective criterion was fixed on the basis of which the Members i.e. Respondents No.5 to 13 in W .P. No.3800/2019 have been appointed. HIST ORY OF PMDC LA WS 8. While dilating upon the propositions raised through the captioned writ petitions, it is necessary to go through the history of different Ordinances promulgated for managing the affairs of medical education as well as recognition of qualification in medical and dentistry . The first legislation in this regard namely PMQC Ordinance, 1962 was promulgated/notified on 05.06.1962 to expedient and consolidates the law relating to registration of medical practitioners as well as of dentists and to reconstitute the Council in order to establ ish a uniform minimum standard of basic and higher qualifications in medicine and dentistry . As per Section 3 of the Ordinance, the Council to be consisted of approximately 18 members and supervised by Head of the Council. Similarly , the said Ordinance in terms of Sections 4, 5 & 7 also provides the mechanism for election of members of the Council, its nomination and terms of the office. The powers and funct ions of the Council have been defined as the apex body to deal with the affairs of medical profession in all respects. The PMDC was also authorized to make regulations on subject enumerated in Section 33 of the PMDC Ordinance, 1962 and provides recognized medical qualification as well as institutions and the manner in which the medical colleges/universities are to be regulated. 9. In the year 2012, the PMDC Ordinance , 1962 was amended through PMDC (Amendment) Act. 2012, as notified on 13.08.2012, whereby the structure of the Council has been changed by incorporating the concept of recognition of hospital, institutions, house jobs, internships, terms of office, restriction of nomination of members, mode of election, withdrawal of recognition, penalties commission of inquiry , etc.
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10. On 19.03.2014, another amendment has been made through PMDC Ordinance (Amendment), 2014 incorporating transitory provision of Section 36B and also to regulate free and fair election of the Council and to deal with procedure of irregularity of the Management Committee and as such, the role of the Federal Government was also highlighted. Lastly , the amendment was referred in order to supersede the judgment of the superior Courts. 11. On 28.08.2015, another amendment has been made through PMDC (Amendment) Ordinance, 2015, whereby the constitution and composition of the Council has been changed with further amendment regarding the mode of election, restriction and nomination of election, executive committee, power to make regulations and transitory provisions. However , the fate of said Ordinance was settled by the apex Court through case reported as. 2018 SCMR 1956 (PMDC Vs. Muhammad Fahad Malik. 12. On 08.01.2019, a new Ordinance known as PMDC Ordinance, 2019 was promulgated to provide for the regulation and control of the medical profession and to establish a uniform minimum standard of basic medical education and training and recognition of qualification in medicine and dentistry with detailed concepts extending the powers to the Council, its composition, election, restriction, terms of office, committees of the Council, recognition of -the institutions and education, withdrawal of recognition, medical practitioners, removal, penalties, offences as well as further provided the concept of medical tribunals with its jurisdiction, appeals, and rule making authority along with the commission of inquiry as well as the terms and conditions of officials working in the PMDC, however the said PMDC Ordinance, 2019 was disapproved by the Senate on 28.09.2019 after due deliberation, which resulted into promulgation of a new Ordinance on 20.10.2019 i.e. the Pakistan Medical Commission Ordinance, 2019 with the purpose to provide for the regulation and control of the medical profession and to establish a uniform minimum standard of basic and higher medical education and training and recognition of qualifications in medicine and dentistry . However , since the petitioners have assailed the said PMC Ordinance, 2019 in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, I have to go through the history of the Ordinances of PMDC as well as the 89 of the Constitution providing the concept of promulgation of an ordinance by the President. HIST ORY OF THE ORDINANCE 13. While dealing with the proposition, learned Additional Attorney General Mr. Tariq Khokhar has drawn the attention of this Court towards historical documents explaining the concept of Ordinance, which are as under: Article 23 of the Indian Councils Act, 1861 23. Notwithstanding anything in this Act contained, it shall be lawful for the Governor General, in Cases of Emergency , to make and promulgate from Time to Time Ordinances for the Peace and rood Government of the said Territories or of any Part thereof, subject however to the Restrictions contained in the last preceding Section; and every such Ordinance shall have like Force of Law with a Law or Regulation made by the Governor General in Council, as by this Act provided, for the Space of not more than Six Months from its Promulgation, unless the Disallowance of such Ordinance by Her Majesty shall be earlier signified to the Governor General by the Secretary of State for India in Council, or unless such Ordinance shall be controlled or superseded by some Law or Regulation made by the Governor General in Council at a Meeting for the Purpose of making Laws and Regulations as by this Act provided. Article 72 of the Government of Indian Act, 1915 72. The governor -general may, in cases of emergency , make and promulgate Ordinances for the ease and good Government of British India or any part thereof and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Governor -General in Legislative Council; but the power of making Ordinances under this Section is subject to the like restrictions as the power of the Governor -General in Legislative Council to make laws; and any Ordinance made under this Section is subject to the like disallowance as an Act passed by the Governor -General in Legislative Council, and may be controlled or superseded by any such Act. Article 71 of the Government of Indian Act, 1924
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71. (1) The local Government of any part of British India to which this Section for the time being applies may propose to the Governor -General in Coun cil the draft of any regulations for the peace and good Government of that part, with the reasons for proposing the regulations. (2) Thereupon the Governor -General in Council may take any such draft and reasons into consideration ; and when any such draft has been approved by the Governor -General in Council and assented to by the Governor -General it shall be published in the Gazette. of India and in the local official gazette, if any, and shall thereupon have the like force of law and be subject to the like disallowance as if it were an Act of the [Indian legislature]. (3) The Governor -General shall send to the Secretary of State in Council an authentic copy of every regulations to which he has assented under this Section. (3a) A regulations made under this Section for any territory shall not be invalid by reason only that it confers or delegates power to confer on Courts or administrative authorities power to sit or act outside the territory in respect of which they have jurisdiction or functions, or that it confers or delegates power to confer appellate jurisdiction or functions on Courts or administrative authorities sitting or acting outside the territory .] (4) Tice Secretary of State may, by resol ution in Council, apply this Section to any part of British India, as from a date to be fixed in the 'resolution, and withdraw the application of this Section from any part to which it has been applied. Article 42 of the Government of India Act, 1935 42. (I) If at any time when the Federal Legislature is not in session the Governor -General is satisfied that circumstances exist which render it necessary for him to take immediate action , he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor -General-- (a) Shall exercise his individual judgment as respects the promulgation of any Ordinance under this Section if a Bill containing the same provisions would under this Act have required his previous sanction to the introduction thereof into the Legislature; and (b) Shall not, without instructions from His Majesty , promulgate any such Ordinance if he would have deemed it necessary to re-serve a Bill containing the same provisions for the signification of His Majesty's pleasure thereon. (2) An Ordinance promulgated under this Section shall have the same force and effect as an Act of the Federal Legislature assented to by the Governor -General, but every such Ordinance-- (a) Shall be laid before the Federal Legis lature and shall cease to operate at the expiration of six (06) weeks from the reassembly of the Legislature, or, if before the expiration of that period resolutions disapproving it are passed by both Chambers, upon the passing of the second of those resolutions; (b) Shall be subject to the provisions of this Act relating to the power of His Majesty to disallow Acts as if it were an Act of the Federal Legislature assented to by the Governor -General; and (c) May be withdrawn at any time by the Governor General. (3) If and so far as an Ordinance under this Section makes any provision which the Federal Legislature would not under this Act be competent to enact, it shall be void. Article 43 of the Government of India Act, 1935 44. (1) If at any time it appears to the Governor -General that, for the purpose of enabling him satisfactorily to discharge his functions in so far as he is by or under this Act required in the exercise thereof to act in his discretion or to exercise his individual judgment, it is essential that provision should be made by legislation, he may by message to both Chambers of the Legislature explain the circumstances which in his opinion render legislation essential, and either -- (a) Enact forthwith, as a Governor -General's Act, a Bill containing such provisions as he considers necessary; or (b) Attach to his message a draft of the Bill which he considers necessary . (2) where the Governor -General takes such action as is mentioned in paragraph (b) of the preceding sub-section, he may at any time after the expiration of one month enact, as a Governor -Genera l's Act, the Bill proposed by him to the Chambers either in the form of the draft, communicated to them or with such amendments as he deems
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necessary , but before so doing he shall consider any address which may have been presented to him within the said period by either Chamber with reference to the Bill or to amendments suggested to be made therein. (3) A Governor -General's Act shall have the same force and effect, and shall be subject to disallowance in the same manner , as an Act of the Federal Legislature assented to by the Governor -General and, if and in so far as a Governor -General's Act makes any provision which the Federal Legislature would not under this Act be competent to enact, it shall be void. (4) Every Governor -General's Act shall be communicated forthwith to the Secretary of State and shall be laid by him before each House of Parliament. (5) The functions of the Governor -General under this Section shall be exercised by him in his discretion. 14. The above referred legislative history explaining the definition of the Ordinance in different constitutional documents refers certain commonalities i.e., (a) Satisfaction of Governor General/Individual Judgment. (b) When legislation is not in session; (c) In case of emergency , (d) Immediate action is required, (e) Is like force of law , (f) For peace and good governance All these factors are almost similar and common with the ingredients of Article 89 of the Constitution, which shows that the Ordinances were only promulgate d, when the circumstances emerged with extreme emergent conditions to cater those requirements, the competent authority at that time was Governor General, who could take action and promulgate the Ordinance as he desired, but all those actions are qualified with certain restriction like non- availability of legislature and requirement of immediate action, which was considered in the relevant term of "satisfaction". For ready reference, Article 89 of the Constitution is reproduced as under: 89. Power of President to promulgate Ordinances (1) The President may, except when the [Senate or] National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and prom ulgate an Ordinance, as the circumstances may require. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of [Majlis-e-Shoora (Parliament)] and shall be subject to like restrictions as the power of [Majlis-e-Shoora (Parliament)] to make law, but every such Ordinance: (a) shall be laid: (i) before the National Assembly if it [contains provisions dealing with all or any of the matters specified in clause (2) of Article 731, and shall stand repealed at the expiration of [one hundred and twenty days] from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly , upon the passing of that resolution [.] [Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one kindred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly , upon the passing of that resolution: Provided further that extension for further period may be made only once. (ii) before both Houses if it [does not contain provisions dealing with any of the matters referred to in sub-paragraph (i )], and shall stand repealed at the expiration of [one hundred and twenty days] from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution[:] Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that…
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