A dangerous precedent
The country was in the grip of the worst ever oil crisis in January, which not only caused great embarrassment to the government but also put the general public in lot of bother. The country virtually was shut down and the people had to endure hardships for good three week before the government was able to tide over the crisis through emergent measures. The magnitude of the crisis warranted fixation of the responsibility and the adoption of measures not only to rectify the situation but also to ensure that no such situation cropped up in the future. The government lost no time in setting up a committee to probe into the whole affair and come up with recommendations in regards to fixing of the responsibility. The committee held an inquiry into the matter and in the light of the recommendations of this preliminary inquiry committee Secretary Petroleum, Additional Secretary Ministry of Petroleum, MD PSO, Deputy MD of PSO and other officers were suspended while Chairman OGRA Saeed Ahmed Khan was sent on three months forced leave pending an inquiry by the Public Service Commission under the OGRA Act to unravel all the aspect of the crisis including final fixation of the responsibility for the crisis.
According to the sources savvy of the legal intricacies and provisions of the OGRA Act, the regulatory authority in the light of Section 6 of the Act was charged with the responsibility to ensure maintenance of 20 days oil stock in the country and keep vigilance on the market fluctuations, which it miserably failed to accomplish, resulting in unprecedented hardship to the general public. The sending of the OGRA Chairman on forced leave was designed to scuttle the possibilities of him exercising any influence on the inquiry proceedings. The step was not only logical but also in accordance with an earlier decision of the SC in Tauqeer Sadiq case in which it was said that during a crisis situation the official of the regulatory authorities responsible for the fracas can be sent on forced leave to thwart the possibility of the officer using his authority to influence the inquiry proceedings. Further, according to the settled constitutional and court procedures, whenever an inquiry for a disciplinary action is entrusted to a prescribed forum, the High Court cannot hear such cases.
But it is really surprising that the Islamabad High Court not only entertained the petition of the OGRA Chairman against his forced leave but after hearing the case has also set aside the government’s decision in this regard. It ostensibly agreed with the argument of the defence lawyer that it was not the duty of the OGRA Chairman to purchase and distribute petrol in the country. The argument on the face of it seems quite valid. He was not responsible for the purchase of the petrol and its distribution but it was his legal obligation as a head of the regulatory authority to see that the organisations responsible for purchasing and maintaining mandatory stocks were fulfilling their obligations amicably.
The legal circles are of the considered opinion that this decision of the IHC is not in line with the relevant legal provisions and is tantamount to undermining the powers of the Executive to run the state institutions in a prescribed manner and hold the officials accountable for their acts of omission and commission. The courts as custodians of the constitution and laws are supposed to set emulating examples for others by abiding the laws and acts enacted by the Parliament. The reinstatement of the OGRA Chairman in complete disregard to legal provision by the court, though, is binding on the parties whether they like it or not but there is no doubt that the decision would surely undermine the inquiry proceedings against him, defeating the spirit of justice.
The fact that the action of the government had the backing of the SC decision on a similar issue which other courts are bound to follow and respect, the IHC decision has not only vitiated the spirit of the SC decision but has also undermined the principle of trichotomy of powers enshrined in the Constitution by trespassing into the domain of the Executive. The judiciary has invariably been emphasising the need for good governance during the hearing of cases of public interest. The good governance is possible only when the state institutions including the Judiciary remain within their constitutional domains and support each other in promoting the wellbeing of the masses which is the ultimate aim of the State. But unfortunately ever since the restoration of the judiciary as a result of the lawyers’ movement, the judiciary in a bid to assert its independence has exhibited an unremitting propensity to overstep its constitutional powers, has acted as popular court rather than a court of law and even trampled the internationally recognised principles of jurisprudence in certain cases. The constitutional experts and eminent lawyers have all along been pointing out this tendency on the part of the judiciary.
The courts while dispensing justice must act as courts of law keeping in view the public interest. Any conduct to the contrary is bound to create difficulties for the institutions which are affected by it. Chairman OGRA was found responsible for the onset of the oil crisis and putting the entire country into discomfort of unprecedented proportions. The executive had the legal authority to take action against him in the light of the OGRA Act and entrust the inquiry to the Federal Public Service Commission. The Executive arm of the State is responsible for running the affairs of the state and the popularly elected governments are entitled to govern the country as per their mandate. All other state institutions are under obligation to respect its mandate and allow it a free hand in dealing with issues of executive nature, of course, within the ambit of law and the constitution.