SC releases Haj quota case detailed verdict
10 October, 2013
ISLAMABAD: Giving detailed judgement against the Lahore High Court's (LHC) decision in Haj quota case, the Supreme Court (SC) has declared that the legitimacy of judgements "does not arise from the beauty of language or the use of populist rhetoric rather it radiates from the dynamism reflected in interpreting the constitution and in particular its fundamental rights provisions, in judicial restraint displayed in deference to the principle of trichotomy of powers, and in an impersonal and impartial application of law".
A two-judge bench comprising Justice Tassaduq Hussain Jillani and Justice Amir Hani Muslim after hearing the appeals against the Lahore High Court and the Islamabad High Court had passed short order on August 27, 2013.
The Haj policy should be framed, announced and placed on the website of Ministry of Religious Affairs preferably within six weeks of the arrival of last flight of pilgrims from Kingdom of Saudi Arabia under intimation to the registrar of this court, the judgement read.
In the short order, the court declared the "High Court order dated 24.6.2013 passed in Writ Petition No 7253/2013 a violative of the principle of trichotomy of powers, which is one of the foundational principles of the constitution".
The court had ruled that it is not the function of the high court exercising jurisdiction under Article 199 of the constitution to interfere in the policy making domain of the executive.
"The jurisdictional limits of the powers of the high court under Article 199 of the constitution, however, do not apply to the Supreme Court in terms of Article 187 of the constitution. This court on account of general institutional dysfunction and to render 'complete justice' has expanded the scope of judicial review in exercise of its powers under Articles 184(3) and 187 of the constitution. But while doing so, it has also been conscious of the principle of separation of powers in terms of which the functions of various organs of the state have been delineated in the constitution. It intervenes to ensure enforcement of fundamental rights, to address the menace of corruption when laws are blatantly violated and to fill the gap in law with a view to render 'complete justice'. The object has also been to ensure that state institutions perform their functions with integrity in accord with law and the oath of their calling," the court said in its judgement.
In 50-page detailed reasons, authored by Justice Jillani, the court said that the Haj policy should be framed by a committee headed by the secretary, Ministry of Religious Affairs (MORA); a nominee of the Competition Commission of Pakistan; a nominee of the secretary, Ministry of Foreign Affairs, Government of Pakistan; a nominee of the secretary Ministry of Law and Justice Division & Parliamentary Affairs; and a nominee of the Attorney General for Pakistan.
"The credentials of each applicant/Haj Group Organisers (HGO) should be examined and decision taken on merit. While framing the Haj Policy, the MORA should be guided, inter alia, by the recommendations made by the Competition Commission of Pakistan.
The MORA should constantly monitor the working and performance of each HGO during Haj and this assessment should form basis for further improvements in Haj Policy for next year's Haj."
The court observed that Haj is a sacred duty for Muslims. But the quota allocated to government of Pakistan by the Saudi government is limited and within that limited quota, it allocates a certain portion to private HGOs.
"Since several hundred HGOs apply for allocation of quota from the Private Haj Scheme share as worked out by the MORA, all applicant HGOs cannot be accommodated and the dismay of those who are left out is understandable. We are conscious that the MORA has to take several steps to ensure that travel, accommodation and other arrangements are made to the satisfaction of Hujjaj. It requires a couple of weeks to complete the exercise. However, since Haj operation is a time bound exercise, arrangements have to be made within that limited time. It is therefore, imperative that the Haj Policy be framed well in time in such a manner which is fair, just, inspires confidence and evokes minimum criticism. It is also imperative that the Haj Policy for the next year should be announced at the earliest after the conclusion of Haj."
The court ruled that a high court is the apex court in the province or in the case of Islamabad, of the capital territory, but they are the creatures of the constitution and they have only that jurisdiction which has been conferred by the constitution or under any law for the time being in force. Article 175(2) specifically mandates, "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."
"The ambit and scope of the power of high court under Article 199 of the Constitution is not as wide, as of the Supreme Court under Article 187 of the Constitution to pass any order or issue any direction or decrees for doing complete justice."