The Islamabad High Court (IHC) Thursday heard the federal government's Intra-Court Appeal (ICA) challenging a single bench's verdict to restore the dissolved Pakistan Medical and Dental Council (PMDC).
A division bench of IHC comprising Chief Justice of IHC Justice Athar Minallah and Justice Fiaz Ahmad Jandran conducted the hearing of the ICA.
During the hearing, the federation sought time to submit its reply and therefore, the court deferred hearing in this matter till March 24.
The ICA stated that the impugned judgment dated 11 February 2020 passed by the single judge in chamber exercising powers under Article 199 of the Constitution of Pakistan was without jurisdiction, excess of jurisdiction, and hence called for interference. It adopted that the impugned judgment suffers from inherent jurisdictional defects and was against the basic constitutional principle of separation of powers and hits the basic structure of constitution. "The learned Judge in Chamber, while attributing mala fide to the president in exercise of his legislative power under the constitution, has traveled beyond the jurisdiction vested in the court, hence the impugned judgment [was] illegal and unlawful," said the ICA.
It added that the impugned judgment was violative to the constitutional norms, fundamental principles of constitutional jurisdiction in defiance to the well settled principles, and tantamount to judicial legislation instead of interpretation and construction of Constitution.
"Without prejudice, the impugned judgment by declaring the PMC Ordinance ultra vires on the basis of factual findings and procedural impropriety has struck down a legislative enactment, which is beyond the jurisdictional power under Article 199 of the Constitution," said the ICA.
It further said the Pakistan Medical Commission Ordinance, 2019 was not altogether distinct and different from the Pakistan Medical and Dental Council Ordinance, 2019, reliance of the learned Judge in Chamber upon dictum of Honourable Supreme Court in the case of PMDC Vs. Fahad Malik (2018 SCMR 1956) for declaring the PMC Ordinance ultra vires, the Constitution is totally inapt, unlawful and illegal. "The exercise of special discretional jurisdiction in the special circumstances when the subject ordinance has been tabled in the Lower House of the parliament and has been passed by the National Assembly and is under consideration by the parliamentary committee and has been duly extended as per the command of the Constitution, as such the exercise of jurisdiction by the learned judge in chambers is an act of judicial zeal and judicial overreach," maintained the ICA.
The ICA continued, "The government is well within its constitutional limits in restructuring and revamping an authority plagued with corruption, inefficiency and lack of professionalism. It is a policy decision and it is well settled the to formulate policies is the sole prerogative of the government and such places are determined with reference to domestic needs, their priorities and multitude of other factors of which the Government is the sole arbiter. In exercise of polices the government can shut down department/offices, retrench employees and no one has a vested right to claim permanence in employment, which even otherwise is subject to good behaviour. The impugned judgment thus suffered from errors of law while holding that promulgation PMC ordinance has violated the fundamental right to life of the respondents."
Therefore, the ICA prayed to the court that the impugned judgement may kindly be set aside in the best interest of justice.
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