ISLAMABAD: The Islamabad High Court in its detailed order on the petitions of sugar mill owners has observed that investigation agencies can initiate proceedings against sugar barons even if the government withdraws the inquiry commission report or the report is quashed by constitutional courts.

IHC Chief Justice Athar Minallah on Monday issued the detailed order explaining reasons for not entertaining the petitions of the sugar industry, saying that “unnecessary judicial intrusion would delay and impede correcting wrongs by taking public policy decisions”.

Examining the constitution of the sugar probe commission, the IHC noted: “The Commission of Inquiry has made recommendations to the federal government for initiation of proceedings under various statutes such as the Sales Tax Act 1990, the Competition Act, 2010, the Companies Act, 2017, the Income Tax Ordinance, 2001, the Benami Transactions (Prohibition) Act 2017, the National Accountability Ordinance, 1999 and the Securities and Exchange Commission of Pakistan Act, 1997. All these statutes are self-contained legislative enactments and provide for distinct mechanisms to take cognisance and initiate proceedings.

Detailed judgement on millers’ petitions issued

“The federal government, at the most, can refer the matter to the concerned statutory authority for consideration. Even if it decides not to do so, the respective statutory authorities cannot be restrained nor are prohibited to initiate proceedings on their own.” The court order said the statutory authorities were not dependent on receiving a referral from the federal government.

While referring to the National Accountability Ordinance (NAO), the IHC stated: “It explicitly provides that the [National Accountability] Bureau is empowered to initiate proceedings in one of three modes (i) receiving a reference from the appropriate government, (ii) on receiving a complaint or (iii) on its own accord.”

Likewise, Section 55 of the Benami Transactions (Prohibition) Act 2017 empowers the federal government to issue orders, instructions or directions but the statute also provides for a mechanism to initiate the proceedings. Under the Sales Tax Act 1990, the Federal Board of Revenue and the Commissioner are empowered to initiate audit proceedings, according to the court order.

“In the light of the recommendations made in the [sugar commission] report, or [if] the report is quashed, would it amount to restraining respective authorities from initiating independent proceedings in accordance with the provisions of the respective statutes? I am afraid that the answer to this question is an emphatic ‘No’. Even if the federal government decides not to take any action pursuant to the recommendations made in the report, the statutory authorities cannot be restrained from fulfilling their obligations and duties under the respective statutes,” Justice Minallah noted.

Such an eventuality was inconceivable because it would virtually amount to suspension of legislative enactments, the court observed. Moreover, it said, the petitioners must not have any fear or hesitation if proceedings are initiated under a particular statute because the proceedings would be governed by the safeguards of procedural fairness.

“We as judges are not representatives of the people nor accountable for those functions that fall within the exclusive jurisdiction and domain of the executive branch of the state. In such matters, intervention would only be justified if an aggrieved petitioner can demonstrably show violation of constitutionally guaranteed rights,” the detailed judgement added.

It stated: “The interests of the public at large will prevail over individual rights or interests. The executive is answerable to the people for performance of its duties and functions assigned under the scheme of the Constitution and, therefore, it should be free from unnecessary interference and intrusions thus warranting exercise of judicial restraint.” The case in hand was indeed one such matter where the executive ought to be given the freedom to alleviate the hardship of the general public, because any unnecessary judicial intrusion would delay and impede correcting wrongs by taking public policy decisions, the court observed.

Discussing the trichotomy of power, the court order stated: “It has been consistently held by the august Supreme Court that the Constitution of Pakistan has been framed on the foundation of trichotomy of powers between three distinct branches i.e the legislature, executive and judiciary.” It added that the Supreme Court also observed and held that one of the seminal principles of the Constitution of Pakistan was the concept of trichotomy of powers between the legislature, executive and the judiciary.

“This principle underpins the rationale that framing of a government policy is to be undertaken by the executive, which is in a better position to decide such matters on account of its mandate, experience, wisdom and sagacity.

“The judiciary, on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of disputes between the individuals inter se and between individuals and the State…The legitimacy and respect of the judgements rendered by the judiciary is dependent on people’s confidence and in its strict adherence to the Constitution, its integrity, impartiality and independence,” the order stated.

Citing the case of disqualification of ex-prime minister Syed Yousuf Raza Gilani, the IHC noted that the apex court eloquently stressed that the constitutional order was founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution.

Earlier on June 20, the IHC chief justice thro­ugh a short order declared that the inquiry commission constituted to probe the cartelisation and price hike of sugar was lawful. The court also validated the sugar commission’s inquiry report while disposing of the petitions filed by the sugar industry. The short order, which was later challenged by the petitioners before a two-member bench of the IHC, is pending adjudication.

Published in Dawn, July 14th, 2020