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ISLAMABAD: The Islamabad High Court (IHC) on Wednesday declared the Pakistan Medical Commission (PMC) Ordinance, 2019 as “ultra vires to the Constitution”.

A single bench of Justice Mohsin Akhtar Kayani announced the verdict in various petitions challenging the vires of Pakistan Medical Commission Ordinance, 2019.

The IHC bench also made it clear in the judgment that the PMC Ordinance, 2019 is ultra vires to the Constitution, therefore, the affairs of the PMDC have to be regulated under the PMDC Ordinance, 1962, which stands revived in its original position.

Justice Kayani stated that the actions, orders and decisions taken by the PMC pursuant to promulgation of the PMC Ordinance, 2019 are hereby declared unlawful and they are not allowed to proceed further in any manner, however the actions affecting the rights of any individual in this regard will have to be considered by the interim regime notified in the case of Fahad Malik supra in Para-24(n), (o) & (p).

He declared, “All the employees of erstwhile PMDC are hereby reinstated into service w.e.f. the promulgation of the PMC Ordinance, 2019, any amount, salary or financial remunerations received by those employees shall stand adjusted in accordance with original positions and any overpaid amount is to be treated as advanced salary accordingly. They are allowed to attend their offices by all means and the federation shall ensure the due protection of their employment rights. Any person who has been appointed against their positions shall be reverted back to his parent department or if any newly appointed person on their positions stands de-notified.”

The IHC bench noted, “The Members of the Council appointed in terms of Section 4 of the PMC Ordinance, 2019 i.e. Respondents No.5 to 11 [Roshaneh Zafar, Muhammad Ali Raza, Tariq Ahmed Khan, Rumina Hassan, Dr Asif Loya, Dr Arshad Taqi and Dr Anees Rehman] are neither allowed to represent PMC or erstwhile PMDC in any manner, nor suppose to join any meeting or pass any order dealing with the affairs of the Council in any manner as their appointment/nomination is illegal and void. Similarly, all of their actions, approvals and orders are also illegal and subject to rectification by the regular Council as and when appointed under the law.”

The bench added that it is expected from all the stakeholders, including the federal government, to take appropriate measures for enactment of a law which is pending before the Parliament as per the constitutional mandate by considering the objectives and functions of PMDC as well as while considering the fundamental rights of the employees of PMDC and other stakeholders.

Justice Kayani ruled, “It is high time to settle the scheme of Article 89 of 1973 Constitution, therefore, it is further expected from the Parliament to reconsider the wisdom of Article 89 of the Constitution in line with its original mandate as referred in the Parliamentary debate taken place in the year 1973 as well as under present circumstances when Article 89 of the Constitution has been misused, therefore, the promulgation of Ordinance or any other such type of instrument should not be used for elimination of permanent enactment or for elimination of permanent rights which were achieved through the act of Parliament so that the constitutional Authority of the Parliament would not be undermined in future or its mandate should not be violated.”

He further said that there is no other opinion through which it could be assumed that the federal government while performing its executive function in approval of the summary of PMC Ordinance, 2019 has not considered the fundamental rights of the employees of erstwhile PMDC and violated Articles 4, 9, 18 and 25 of the Constitution in a blatant manner and it has been observed that unbridled discretion was extended to the Prime Minister for appointment of members of the Council under Section 4 of the PMC Ordinance, 2019.

“The PMC Ordinance, 2019 is no doubt a fraud on the Constitution on the touchstone of Fahad Malik case supra where the last hope of the employees regarding their secured employment and right to life in terms of Article 9 of the Constitution is withdrawn. It is settled law that any legislation which is in violation of the fundamental rights protected in the Constitution is said to be called a void law,” maintained the IHC bench.

Therefore, the judgment said that the PMC Ordinance, 2019 is declared to be ultra vires to the Constitution and its effect is considered to be nullity in the eyes of law from the date of its promulgation, although it has now been converted into a Bill which is pending with the parliament, however it has no legal effect as bill has yet to take effect unless it has been passed by the Parliament in the manner provided in the Constitution.

The bench also declared that in future, in case any emergent situation arises for promulgation of any Ordinance, the federal government shall state the reasons with justification in the summary before its approval in accordance with the Rules of Business, 1973 together with the procedure provided in terms of Mustafa Impex case.

It further said that however, it is not considered to be lawful that any Ordinance would be promulgated when Parliament is in existence and its sessions dates were not fixed for a short period of time, as such practice on the part of the federal government will show their inability to manage the political authority in the Parliament vested by the Constitution due to their lack of majority or due to their poor advice by different advisors who are not equipped with the scheme of law.

Copyright Business Recorder, 2022

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