Presidential Ordinance declared illegal: Reinstatement of 220 employees of erstwhile PMDC ordered

The Islamabad High Court (IHC) has declared presidential ordinance about dissolution of the Pakistan Medical and Dental Council (PMDC) illegal and issued directives to reinstate the 220 employees of the council. A single-member bench of the IHC comprising Justice Mohsin Akhtar Kayani Tuesday issued a short order directed for dissolution of recently established Pakistan Medical Commission (PMC) terming it "null and void".

In October of last year, President Dr Arif Alvi had promulgated an ordinance, through which the PMDC Ordinance, 1962 was repealed and the council established thereunder was dissolved and a new commission, the PMC, was established, and services of the 220 employees of the PMDC were terminated.

Former registrar of the PMDC, Dr Sitara Hassan and many other employees invoked jurisdiction of the IHC for remedy by challenging the formation of the PMC.

The counsel for the aggrieved party, Advocate Umer Sajjad Chaven had filed the petition before the IHC arguing that the president's power to promulgate ordinances can only be used to bring about such legislation only when the Parliament is not in session and there is emergency situation such as war, famine, epidemic or a rebellion.

Urging the bench to declare the impugned ordinance illegal, unconstitutional being ultra vires under Article 89 of the Constitution, Chaven argued that the ordinance was promulgated in a mala fide manner.

President of Pakistan on 9th January 2019 promulgated the PMDC Ordinance, 2019 and established a commission. The PMDC Ordinance 2019 was placed before the Senate and on 29th August 2019, after due deliberations on the provisions of the PMDC Ordinance 2019, the Senate disapproved the said ordinance by majority votes through a resolution under subparagraph (ii) paragraph (a) clause (2) of Article 89 of the Constitution.

Umer Sajjad further contended that re-promulgation of identical ordinance by the president was a fraud committed against constitution as declared by the Supreme Court of Pakistan in Fahad Malik case.

Similarly, re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body, which is a primary source of law making authority in a parliamentary democracy.

Advocate Chaven sought the court's intervention, saying the employees of the PMDC have been deprived of their fundamental rights including the right to earn livelihood and social and economic rights, and thus caused the infringement of fundamental rights as guaranteed under the constitution.

The bench had earlier reserved its matter after hearing arguments of both sides.

In this matter, the petitioner also said that the services of the PMDC employees were terminated without giving them a proper opportunity of hearing.

It expressed apprehensions that the newly-formed PMC may hire the services of new employees against the sanctioned and contractual positions through other modes after issuance of advertisement, which would jeopardize the vested rights to serve the council's previous employees.

The petitioners requested the court to declare the ordinance for the establishment of the PMC as unconstitutional, and in the meanwhile, allow the erstwhile PMDC employees to continue work in the newly-formed commission.