ISLAMABAD, Oct 9: The Supreme Court emphasised on Wednesday the need for framing Haj policy well in time in a fair and just manner that must inspire confidence and evoke minimum criticism.

It is also imperative that the Haj policy for next year be announced at the earliest after the conclusion of Haj this year, said a verdict authored by Justice Tassaduq Hussain Jillani and issued on Wednesday.

In a short order on August 27, the apex court had held that the Lahore High Court had no role to interfere in the policy-making domain of the executive while exercising jurisdiction under Article 199 of the constitution because it violates the principle of trichotomy of powers, which is one of the foundational principles of the constitution.

The short order had come while accepting a number of appeals moved by Haj group organisers (HGOs) — Dossani Travels, City Travels, Super Travels, Usman Air Travels and Golden Travel Services.

The petitioners had assailed the high court’s judgment in which the ministry of religious affairs was directed to allocate the Haj quota through auction to 18, out of the top 60 HGOs, while deciding challenges against the process of quota allocation by the ministry.

In the detailed judgment, Justice Jillani directed the ministry to frame the Haj policy and place it on its website, preferably within six weeks of arrival of the last Haj flight from Saudi Arabia, under intimation to the SC registrar. This of course would be subject to any policy decision of the Saudi government regarding allocation of Haj quota for Pakistan.

The Haj policy should be framed by a committee headed by the secretary of the ministry, a nominee of the Competition Commission of Pakistan, a nominee of the secretary, ministry of foreign affairs, a nominee of the law secretary and a nominee of the Attorney General.

The credentials of each applicant/HGO should be examined and decision taken on merit and while framing the Haj policy, the ministry should be guided by the recommendations made by the CCP on the subject.

The ministry should constantly monitor the working and performance of each HGO during Haj and this assessment should form the basis for further improvements in the Haj policy for next year’s Haj, the detailed verdict said.

The performance of Haj is a sacred duty, but the quota allocated to Pakistan by the Saudi government is limited and within that quota, it allocates a certain portion to private HGOs, observed Justice Jillani. Since several hundred HGOs apply for allocation of quota from the Private Haj Scheme share as worked out by the ministry, all applicant HGOs cannot be accommodated and the dismay of those who are left out is understandable.

“We are conscious that the ministry 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,” the verdict said.

The verdict explained that the principles of trichotomy of powers between the legislature, executive and the judiciary underpins the rationale that framing of a government policy was to be undertaken by the executive which was in a better position to decide on account of its mandate, experience, wisdom and sagacity acquired through diverse skills.

The legislature, which represents the people, enacts the law and the law so enacted acquires legitimacy. The judiciary, on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in disputes between the individuals inter se and between individual and the state.

“We may remind ourselves that judiciary neither has sword nor purse. The legitimacy and respect of its judgments is dependent on people’s confidence in its strict adherence to the constitution, its integrity, impartiality and independence,” the verdict said.

In changing times and ‘judicialisation’ of political issues, a certain degree of judicial activism by fearless and impartial judiciary is also essential for maintaining its integrity and people’s trust. In most of the modern democracies, judiciaries have been called upon to provide wider meanings to various provisions of the constitution so as to meet the challenges of modern times and to fill the gap between the law and the requirements of substantive justice, it said.

Every institution has to play its role in enforcing the constitution and the law. It is a multi-disciplinary exercise. However, implementation of rule of law is the primary function of judiciary. This role is multi-dimensional and the most challenging facet of this role is to keep various institutions and the judiciary itself within the limits of their respective powers laid down in the constitution and the law, the judgment said.

The legitimacy of its judgments does not arise from the beauty of the 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, the verdict said.