Hajj quota case: Top court empowered to ‘review executive actions’
In detailed order, SC says govt has exclusive power to review Hajj policy every year
In detailed order, SC says govt has exclusive power to review Hajj policy every year. PHOTO: AFP
ISLAMABAD:
The Supreme Court has declared that it is empowered to review executive actions on the basis of mala fide intentions and arbitrariness.
The three-judge bench of the apex court, headed by Chief Justice of Pakistan Anwar Zaheer Jamali and comprising Justice Iqbal Hameed ur Rehman and Justice Manzoor Ahmad Malik, while passing a short order on May 3, set aside the Sindh High Court judgment and restored 50% quota of private Hajj operators, which had been reduced to 40% this year.
After the passage of four months, the court has issued an 18-page detailed judgment, wherein it is held that the Hajj Policy 2016 pertaining to the reduction in private quota of HGOs had failed the test of judicial review.
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Interestingly, Justice Iqbal Hameed ur Rehman has authored the detailed verdict. A senior law officer says that it is a long-awaited verdict because everyone was eager to know about the reasons for restoring 10% quota of private Hajj operators.
He adds that dozens of contempt petitions are pending regarding non-implementation of the court’s directives on the Hajj policy because the proceedings on these cases were not held due to delay in the issuance of this detailed verdict.
The judgment further states that it is the prerogative of the top court to scrutinise the basis of any executive action to test whether the process/method employed by the government has fulfilled all the requirements of law, adding if an executive action is to survive the test of judicial review, then it must be justified in law.
“Whilst it is not within the domain of this court (SC) to interfere in the policy making of the government, it is imperative that such policies be subject to judicial scrutiny in order to assess whether the genesis of such policy suffer from any legal infirmity and whether it was formulated in an arbitrary or whimsical manner,” says the verdict.
It further held, “We must not forget that this court is empowered to review executive actions for mala fide and arbitrariness. The manner in which an act is mandated to be done in law or an authority vested in the executive mandated to be exercised in a certain way is subject to judicial scrutiny to ensure that compliance with the legal regime has been achieved.”
In present case, the verdict says that it does not find the decision for reduction in the private scheme Hajj quota by the ministry of religious affairs to be justified in law and the procedure adopted in the formulation policy decision appears shrouded in doubt.
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It is further pointed out that there is no record of any deliberation/contemplation regarding the decrease in the private Hajj schemes quota before the special committee, which was constituted on the court’s direction, adding the quota was reduced in an arbitrary manner without providing any sound reasons and without justifying the decision.
The top court, however, emphasised that the government has exclusive power to review/reframe the Hajj policy every year keeping in view the latest developments and expediencies which would be subject to guidelines given by this court in the Dossani case.
It also made it clear that this case may not be cited as a precedent that would debar the government from exercising such powers; as such, there would be no restriction on the government to alter or vary the Hajj policy.
Published in The Express Tribune, October 12th, 2016.
The Supreme Court has declared that it is empowered to review executive actions on the basis of mala fide intentions and arbitrariness.
The three-judge bench of the apex court, headed by Chief Justice of Pakistan Anwar Zaheer Jamali and comprising Justice Iqbal Hameed ur Rehman and Justice Manzoor Ahmad Malik, while passing a short order on May 3, set aside the Sindh High Court judgment and restored 50% quota of private Hajj operators, which had been reduced to 40% this year.
After the passage of four months, the court has issued an 18-page detailed judgment, wherein it is held that the Hajj Policy 2016 pertaining to the reduction in private quota of HGOs had failed the test of judicial review.
Hajj policy: MPs seek transparency in hardship quota distribution
Interestingly, Justice Iqbal Hameed ur Rehman has authored the detailed verdict. A senior law officer says that it is a long-awaited verdict because everyone was eager to know about the reasons for restoring 10% quota of private Hajj operators.
He adds that dozens of contempt petitions are pending regarding non-implementation of the court’s directives on the Hajj policy because the proceedings on these cases were not held due to delay in the issuance of this detailed verdict.
The judgment further states that it is the prerogative of the top court to scrutinise the basis of any executive action to test whether the process/method employed by the government has fulfilled all the requirements of law, adding if an executive action is to survive the test of judicial review, then it must be justified in law.
“Whilst it is not within the domain of this court (SC) to interfere in the policy making of the government, it is imperative that such policies be subject to judicial scrutiny in order to assess whether the genesis of such policy suffer from any legal infirmity and whether it was formulated in an arbitrary or whimsical manner,” says the verdict.
It further held, “We must not forget that this court is empowered to review executive actions for mala fide and arbitrariness. The manner in which an act is mandated to be done in law or an authority vested in the executive mandated to be exercised in a certain way is subject to judicial scrutiny to ensure that compliance with the legal regime has been achieved.”
In present case, the verdict says that it does not find the decision for reduction in the private scheme Hajj quota by the ministry of religious affairs to be justified in law and the procedure adopted in the formulation policy decision appears shrouded in doubt.
Pakistani pilgrim missing in Saudi Arabia for six weeks
It is further pointed out that there is no record of any deliberation/contemplation regarding the decrease in the private Hajj schemes quota before the special committee, which was constituted on the court’s direction, adding the quota was reduced in an arbitrary manner without providing any sound reasons and without justifying the decision.
The top court, however, emphasised that the government has exclusive power to review/reframe the Hajj policy every year keeping in view the latest developments and expediencies which would be subject to guidelines given by this court in the Dossani case.
It also made it clear that this case may not be cited as a precedent that would debar the government from exercising such powers; as such, there would be no restriction on the government to alter or vary the Hajj policy.
Published in The Express Tribune, October 12th, 2016.