Sec 14(4) of Mohtasib Act: Power to decide ‘representation’ resides solely with President: SC

ISLAMABAD: The Supreme Court ruled that the power to decide the representation resides solely with and is exercised only by the President after due application of mind.

A two-judge bench comprising Justice Syed Mansoor Ali Shah and Justice Hasan Azhar Rizvi held that in a case pertaining to the interpretation of Section 14(4) of the Federal Ombudsmen Institutional Reforms Act, 2013, which provides that a representation made to the President shall be “processed” in the office of the President by a person who has been or is qualified to be a judge of the Supreme Court or has been a Wafaqi Mohtasib or Federal Tax Ombudsman.

The judgment, authored by Justice Mansoor, noted that in the absence of any specific power to delegate decision-making powers of the President under the Act of 2013, the word “processed” means that the decision-making powers of the President have been delegated to the said officer under Section 14(4) and the President stands divested of the said powers.

The judgment observed that in light of these provisions, the President is specifically authorized to nominate an officer to process a representation by preparing the case and giving his/her views on the said representation, which are likely to be only in the shape of recommendations/proposals, and in no manner can it be stated that the nominated officer is deciding the representation. The case is then placed before the President for decision thereon and “the power to decide the representation resides solely with and is exercised only by the President after due application of mind”.

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Justice Mansoor wrote that the object of the requirement of the nominated officer, a person of high legal standing who has acted or is qualified to act in a judicial or quasi-judicial capacity, to process the representation, which might involve significant substantive and technical legal questions, and to express his views on the said representation before sending the case to the president for decision thereon, is only to assist the president in deciding the representation.

The president may or may not be a person with a legal background and, along with deciding representations filed under other diverse laws, has various other overbearing and important functions and duties as head of State, which include the functions, powers, and duties of the president under the Constitution, and under other laws.

As such, in view of the demanding and arduous position that the president holds, and, therefore, for practical purposes, the role of the nominated officer is only to consolidate and simplify the record, and prepare the case before him so that it can be presented before the president for his decision.

“This in no manner dilutes the decision-making powers of the President because the discretion to accept or reject a representation is retained and vested entirely in the president himself, who, while deciding the representation, may agree with the recommendations/proposals so forwarded by the nominated officer, by adopting the reasons given by the nominated officer and/or also for his own reasons, or disagree with them for his own reasons and decide the representation after assessing the available record and independently applying his mind to the matter,” said the judgment.

The Court noted that two decisions of the president have also been placed on the record for reference purposes by the representative of the President’s Office. In the first decision, the president had disagreed with the recommendations of the nominated officer, gave a personal hearing to the parties, and decided the representations giving detailed reasons for the same.

The second decision indicates that even though the president had agreed with the recommendations of the nominated officer, he also gave his own reasons for deciding the representation in the said manner, indicating due application of mind while deciding the matter.

As such, it is apparent that even though the views of the nominated officer in the form of such recommendations/proposals may assist the president in coming to a decision regarding the representation, however, it is only the president who decides the representation after conscious application of independent mind on the strength of tangible and material evidence, as is required under the law.

Consequently, the power of the president to decide the representation himself remains intact and cannot be said to have been delegated to any other officer nominated by him under Section 14(4) of the Act of 2013.

Copyright Business Recorder, 2023