Representation ‘only president’s right’

Top court says power cannot be delegated to any other officer nominated by him

ISLAMABAD:

The top court has held that the power of the country’s president to decide the representation himself remained intact and could not be said to have been delegated to any other officer nominated by him under Section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013.

“It is apparent from the provisions … that the president is specifically authorised to nominate an officer to process a representation by preparing the case and giving his/her views on the said representation, which are likely to be only in the shape of recommendations/proposals, as in the instant case, and in no manner can it be stated that the nominated officer is deciding the representation. The case is then placed before the president for decision thereon and the power to decide the representation resides solely with and is exercised only by the president after due application of mind,” read a seven-page written order authored by Justice Syed Mansoor Ali Shah.

Justice Shah was interpreting Section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013, which provided that a representation made to the president shall be “processed” in their office by a person, who had been or was qualified to be a judge of the Supreme Court or served as a federal ombudsman.

This raises the question of what will happen in the absence of any specific power to delegate the decision-making powers of the president under the Act of 2013.

The court ruled that the word “processed” meant that the decision-making powers of the president had been delegated to the nominated officer under Section 14(4) in such a scenario. In that case, the president stood divested of these powers.

A division bench of the apex court led by Justice Shah noted that it was apparent that the nominated officer only processed the representation before sending the case to the president for his decision.

It also held that the word “process” was defined as “a series of actions or steps towards achieving a particular end” or “a mode, method, or operation, whereby a result or effect is produced”.

“Processing the representation therefore comprises … the actions or steps towards achieving the required objective i.e. a decision on the representation by the president. The views so expressed by the nominated officer in the form of recommendations/proposals form part of the procedure to process the representation before the case is sent to the president and the final decision thereon is taken only by the president,” the order read.

“For this purpose, even though not being necessary, the president may also give a personal hearing to the parties, if required, as can be inferred from Section 15 of the Act of 2013,” it added.

The court noted that the power to process a representation by preparing the case, and the authority to decide it, after due application of mind, were inherently distinct functions and could not be equated or conflated.

“The function of processing a representation by the nominated officer is only ancillary to the main objective of decision on the representation by the president. According to [Professor] De Smith’s Judicial Review, courts have even conceded that an authority has an implied power to entrust to a group of its own members with the authority to investigate, to hear evidence and make recommendations in a report, provided that (a) it retains the power to make decisions in its own hands and receives a report full enough to enable it to comply with its duty to ‘hear’ before deciding, and (b) the context does not indicate that it must perform the entire adjudicatory process itself.

The SC ruled that where there were express statutory provisions to this effect, the court had to consider whether the minister or governor or, as in this case, the president, had to act “judicially” in some respect and had failed to do so.

“The respect in which he [the president] has to observe judicial procedure or act judicially will depend on the statutory or other provisions under which the matter arises,” the order stated.

The judgment noted that the object of the requirement of the nominated officer, a person of high legal standing who had acted or was qualified to act in a judicial or quasi-judicial capacity, to process the representation, which might involve significant substantive and technical legal questions, and to express their views on the matter before sending the case to the president for his decision, was only to assist the head of the State in deciding the issue.

“The president may or may not be a person with a legal background and, along with deciding representations filed under other diverse laws, has various other overbearing and important functions and duties as head of [the] State, which include the functions, powers and duties of the president under the Constitution, and under other laws,” the order read.

“As such, in view of the demanding and arduous position that the president holds, and, therefore, for practical purposes, the role of the nominated officer is only to consolidate and simplify the record, and prepare the case before him so that it can be presented before the president for his decision. This in no manner dilutes the decision-making powers of the president because the discretion to accept or reject a representation is retained and vested entirely in the president himself, who, while deciding the representation, may agree with the recommendations/proposals forwarded by the nominated officer, by adopting the reasons given by the nominated officer and/or also for his own reasons, or disagree with them for his own reasons and decide the representation after assessing the available record and independently applying his mind to the matter,” it added.

The SC observed in its verdict that to this effect, two decisions of the president had also been placed on the record for reference purposes by a representative of his office.

“In the first decision, the president had disagreed with the recommendations of the nominated officer, gave a personal hearing to the parties, and decided the representations giving detailed reasons for the same,” the judgment read.

“The second decision indicates that even though the president had agreed with the recommendations of the nominated officer, he also gave his own reasons for deciding the representation in the said manner, indicating [the] due application of mind while deciding the matter,” it continued.

The court observed apparently even though the views of the nominated officer in the form of recommendations or proposals might assist the president in reaching a decision on the representation, however, it was only the head of the State who decided it after conscious application of an independent mind on the strength of tangible and material evidence, as was required under the law.

“Consequently, the power of the president to decide the representation himself remains intact and cannot be said to have been delegated to any other officer nominated by him under Section 14(4) of the Act of 2013,” the verdict concluded.