Court decisions on draft summaries: Ministry restrains itself from offering interpretations

Ministry of Law and Justice is said to have restrained itself from offering interpretation of court's decisions and views on draft summaries being sent by different Ministries/ Divisions and attached departments, well informed sources told Business Recorder.

Ministry of Law and Justice which sometimes faces criticism for not sending timely views on different proposals has issued an Office Memorandum (OM) titled "consultation with the Ministry of Law and Justice under Rules of Business 1973," to clarify its position.

Rules 7,14, 27, 27, 28,29, 30 and 43 of the Rules of Business, 1973 read with instruction 44 and appendix F of the Secretariat instruction provide the manner of consultation with the Law and Justice Division on various legal issues. However, in many cases such procedure for consultation is not being followed.

Law and Justice Division has urged the Ministries, Division, attached departments and subordinate offices as well as other organisations including autonomous bodies to strictly adhere to the following instructions which are based on the rules: (i) requests should be made on legal questions arising out of any case or on the interpretation of any law by clearly indentifying legal question involved. Requests for views/ comments in this regard shall not be responded; (ii) Law and Justice Division shall be consulted for scrutiny, examination and vetting of Bills, Ordinances, Presidential Orders and other legislative and legal instruments. Such consultation is required before the issue of or authorization of an order, rule, regulation, bye-law, notification, etc, in exercise of statutory powers and before instituting and defending criminal and civil proceedings in a court of law in which the government is involved; (iii) draft summaries for views/ comments shall not be responded; (iv) request for advice/ opinion by autonomous statutory bodies or other organizations must be routed through the administrative Ministry or Division.

Under sub-rule(2) of the Rule of 14 of the Rules, no Division shall consult the Attorney General except through the Law and Justice Division and in accordance with the procedure laid down by that Division.

The practice of requesting representation in various meetings needs to be curbed as it is a deviation from normal procedure. Law Division renders written advice/ opinion, consult relevant laws. The officers of Law Division, while writing advice or opinion, consult relevant laws, commentary of reference books, judgments of superior courts and discuss with colleagues, when necessary. Obviously, such facilities are not available in the meeting.

According to the Ministry of Law and Justice, in case the participation of Law Division's nominee or representative is essential or is a statutory requirement, the working paper, identifying legal questions, shall be provided for proper preparation, at least five clear working days ahead of the scheduled date for the meeting. The decision to participate in the meetings shall rest with the Law Division.

Nomination of any officer of Law Division as member of a committee etc. shall have to be made with prior consultation. When time left for filing an appeal is less than seven days, an officer of the administrative department, not below the rank of Deputy Secretary of the Ministry should bring the file personally to the Solicitor General. Such references to the Law and Justice Division from the Ministries/Division should be made preferably at the senior level.

In pursuance of the direction of Supreme Court, Ministry of Law and Justice shall not advise any interpretation/opinion/clarification on the judgments of the courts. However, Ministries/Divisions/Provincial Governments may approach directly to the concerned respective courts.

The cases of opinion shall be examined subject to the fulfillment of the following information: (i) background of the cases; (ii) current scenario; (iii) question of facts; and (iv) question of law.

Copyright Business Recorder, 2019