ISLAMABAD: The Public Accounts Committee (PAC) has no case on the question of summoning the Registrar of the Supreme Court, constitutional provisions and rules clearly say.
However, the PAC members might not have been told about these articles of the ConstitutionAll payments re-authenticated by AG; SC had decided the issue in Oct 2009 in full court reference; does the PAC not know or has a political issue been created?
and rules but a full court reference of the Supreme Court was definitely sent to the parliamentary committee not only in 2009 but also recently, clearly stating that the PAC does not have the jurisdiction to discuss the spending of the Supreme Court budget because it would be violation of the Constitution itself.
A full court reference of the Supreme Court held on 22-10-2009 addressed the issue of summoning of Registrar SC before the PAC and discussion of SC’s budget in the parliamentary committee.
It is beyond one’s comprehension what incited the PAC to summon the SC Registrar when it had been told in black and white quoting all the articles and rules by the SC in 2009. It appears that at a time when the SC is hearing mega corruption scandals of the government involving billions of rupees and recoveries are being made on the orders of the court, the government has found an easy way of undermining the independence of judiciary by summoning the Registrar of the apex court before the PAC and making it a political issue.
Below is the text of full court meeting held on 22-10-2009 which not only explains each and every aspect of the issue regarding PAC’s purview to discuss SC budget but also belies all the so-called constitutional experts who wants PAC to breach the Constitution by summoning the Registrar SC before it and discuss the conduct of the judges in Parliament.
“In the full court meeting held on 22.10.2009 the first item on the agenda related to the question as to whether the Registrar of the Court was obliged to appear before the Public Accounts Committee (PAC) of the National Assembly. A kit discussion took place in the said meeting and there was a general consensus that in view of various constitutional provisions relating to the autonomy and independence of this court, the PAC did not have the jurisdiction to ask the Registrar or any other functionary of the Supreme Court to appear before it. The relevant constitutional provisions and a synopsis of the reasons for this opinion are outlined below.
2. However, before examining the Constitution, two aspects of the matter need to be highlighted:
Firstly, that the Supreme Court is neither shy of a scrutiny of its accounts nor is it avoiding a decision on the matter. The scrutiny of the accounts of the Supreme Court is undertaken by the constitutionally mandated functionary for the purpose namely, the Auditor General of Pakistan. The Supreme Court, on its own initiative, has put in place a pre-audit mechanism, whereby transparency in its spending and accounting processes is ensured even before a sum is disbursed from the budget of the Court. This pre-audit exercise is undertaken in association with the office of the Auditor General, which has opened a counter of the Accountant General Pakistan Revenues (AGPR) in the premises of the Supreme Court building. It is further to be emphasised that all payments scrutinised by the pre-audit cell of the AGPR are re-authenticated by the office of the Auditor General in accordance with its standard practices and procedures.
Secondly, it is to be clarified that the constitutional provisions, discussed below, guarantee the autonomy of the Court and are meant to ensure its independence from the other principal organs of the state viz Parliament and the executive. As a point of principle and judicial efficacy, this autonomy and independence has to be recognised, respected and guarded by all organs of the State.
3. Coming now to the Constitution itself, it may be noted that apart from the general provisions of the Constitution which provide for the independence of the judiciary, distribution of powers between the three organs of the State and the exercise of such powers, there is a scheme quite clearly discernable from specific constitutional provisions which supports the above opinion. Among these provisions is para 10 of the Preamble, which has been incorporated in the substantive part of the Constitution as para 10 of the Objectives Resolution.
4. More specifically, the provisions of Articles 78 to 88 of the Constitution relate to financial procedure and budgetary allocations. Of particular relevance to the matter under discussion is the structural scheme highlighted in Articles 78 to 83 of the Constitution. This scheme unambiguously distinguishes between revenues received by the government, which form part of the federal consolidated fund as opposed to all other moneys, which are to be credited to the public account of the federation. It is so specified in Article 78 and the distinction runs throughout the provisions contained in Articles 78 to 88 of the Constitution.
5. As discussed in the meeting on 22.10.2009, “the remuneration payable to the judges of the Supreme Court” (Article 81(a)), and “the administrative expenses including the remuneration payable to the officers and servants of the Supreme Court” (Article 81(b)), are amounts which are charged upon the federal consolidated fund and the same are not paid out of the public account of the federation.
6. Article 82 of the Constitution mandates and reinforces the distinction between the federal consolidated fund on the one hand and other expenditure paid from the public account of the federation. Of special significance in this context is Article 82(2) which clearly lays down that so much of the annual budget statement as relates to other expenditure shall be submitted to the National Assembly in the form of demands for grants and the National Assembly has been given the power to assent to or refuse such demands for grants. Article 83 also refers to “grants made or deemed to have been made by the Notional Assembly under Article 82.” These demands for grants are met from the public account of the federation. The Constitution separately deals with the “sums required to meet the expenditure charged upon the federal consolidated fund.”
7. It is in the backdrop of the constitutional scheme outlined in the above provisions of the Constitution that the power and jurisdiction of the PAC needs to be examined. The National Assembly has, in exercise of its powers under Article 67(I) of the Constitution, adopted the rules of procedure and conduct of business in the National Assembly, 2007 (the “Rules”
. Chapter XX of the Rules provides for committees of the National Assembly generally while Part I of the said chapter makes provision for standing committees of the Assembly, of which the PAC is one. Rule 202 specifies the composition of the PAC while Rule 203 sets out its functions. Sub-rule (1) of Rule 203 provides as under:
“203 Functions: (I) The committee shall examine the accounts showing the appropriation of sums granted by the Assembly for the expenditure of the government, the annual finance accounts of the government, the report of the Auditor General of Pakistan and such other matters as the minister for finance refers to it”
It is clear that the words “granted by the Assembly” used in Rule 203 have reference to the demands for grants referred to in Article 82(2) of the Constitution in contradistinction to “expenditure charged upon the federal consolidated fund” which is covered by Article 82 (2) of the Constitution and over which the National Assembly has no oversight, voting control or authority. It is also not without significance that so much of the annual budget “as relates to expenditure charged upon the federal consolidated fund may be discussed in, but shall not be submitted to the vote of the National Assembly.” This expenditure is, therefore, distinguishable from “demand(s) for grants which may or may not be acceded to by the National Assembly.
8. Bearing in mind the above constitutional structure, even if the wider scheme ensuring independence of the judiciary is, for the time being, kept aside it will become evident that Rule 203 only empowers the PAC to examine the accounts showing the appropriation of sums granted by the Assembly. Since the sums budgeted for the Supreme Court are a charge on the federal consolidated fund these sums, by definition, are not amounts granted by the Assembly. As such the PAC cannot exercise any powers in relation to the examination or scrutiny of the same. This, in short, conclusively establishes that the PAC cannot require the attendance of the Registrar to question him as the Principal Accounts Officer (PAO) of the Supreme Court.
9. In addition to the above, Rule 203 also specifies the remit of the PAC, which is confined to a scrutiny of the accounts of the government. A plain reading of the Constitution will show that the Supreme Court is not part of the government. In the context of the matter now being considered, Article 81 of the Constitution itself draws the distinction between the government and those constitutional functionaries who are enumerated in clause (a) of the said Article. The Supreme Court is, in fact, separate from and independent of the government. If, at all, there was any ambiguity on this score, the same is set at rest by Article 90 of the Constitution as now amended. One of the important constitutional functions of the Supreme Court is to maintain a check on the government to ensure that it remains within the limits prescribed for it by the Constitution.
10. Rule 203 ibid in particular and Chapter XX of the Rules ‘generally’, are also helpful in defining the mandate of the PAC and the limits of its authority. These rules reinforce the opinion expressed above that the role of the PAC is confined to the scrutiny of accounts showing “the appropriation of sums granted by the National Assembly.” It has no power in relation to the federal consolidated fund, on which the expenditure of the Supreme Court is charged. The doctrinal rationale for this framework is also self-evident. It ensures that the Court can perform its constitutional role, without interference from Parliament. It would, therefore, seriously compromise the independence of the judiciary and would thus be inconceivable for the Registrar of the Supreme Court as its PAO to appear before PAC and be questioned in relation to the Court’s budget and appropriations from the same.
11. Note may now be taken of the terminology and nomenclature used in the rules, because these also facilitate resolution of the matter in hand. Rule 2(2) provides that the “words and expressions used but not defined in these rule shall, unless the context otherwise requires, have the meaning assigned to them in the Constitution.”
12. A reading of Rules 198 and 202 will make it clear that the PAC is a standing committee on public accounts and as such, its remit extends to such accounts. A simple reading of Article 78 of the Constitution is all that is needed to ascertain what constitutes public accounts. Clause 2 of Article 78 defines the sums, which are to be “credited to the public account of the federation.” The term ‘public accounts’ therefore, as used in the rules, can only mean the various accounts, which relate to moneys credited to the public account of the federation and nothing else. It is these sums, which fall within the jurisdiction and scope of inquiry of the PAC. Since the federal consolidated fund, by its very nature, is separate and distinct from the public account of the federation, it necessarily follows that the PAC has nothing to do with it.
13. At this point reference may also be made to other provisions of the Constitution, which are meant to ensure the autonomy and independence of the three principal organs of the State. Clauses (I) and (2) of Article 69 of the Constitution are meant to secure a similar independence for Parliament. Clause (1) stipulates that the validity of proceedings in Parliament shall not be called in question on the ground of any irregularity of procedure.
Clause (2) is even more specific as it provides, in clear and unambiguous terms, for the ouster of the jurisdiction of any Court, in respect of an officer or member of Parliament in the following terms:
“69(2) No officer or member of (Majlis-e-Shoora (Parliament)) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in (Majlis-e-Shoora (Parliament)), shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers”
14. Here, it may also be appropriate to point out that in line with the procedure adopted by the Supreme Court for regulating disbursements from its budget, the powers to approve such expenses are exercised by the Chief Justice of Pakistan and some of the senior judges of the Court, to whom functions under various heads such as stationery, printing, library books, transport, medical bills etc, are delegated by the Chief Justice. It is, therefore, the Chief Justice of Pakistan and other senior judges who scrutinise requisitions and approve disbursements from the budget. The expenses disbursed out of the Supreme Court budget are also to be examined and approved by the Chief Justice of Pakistan or by other judges of the Court, in accordance with their delegated authority. Article 68 of the Constitution stipulates as under: 68. No discussion shall take place in (Majlise-Shoora (Parliament) with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.”
There is a complete bar on discussion on the conduct of judges in Parliament. Such conduct would include the discharge of their duties in the administrative and financial affairs of the Court. The PAC, it may be noted, is only a standing committee of the National Assembly. If the entire Parliament (Majlis-e-Shoora) is barred from discussing the conduct of any judge in the discharge of his duties, it should be evident that a committee alone of the chamber of Parliament will not be in a position to hold such discussion. Article 68 ibid is being highlighted because the PAC while discussing the accounts of various ministries, divisions, state corporations and autonomous bodies questions and discusses the conduct of the functionaries in such ministries etc. Similar proceedings in respect of the Supreme Court are manifestly barred under Article 68 reproduced above. The Article mirrors the autonomy of Parliament, in certain matters referred to in Article 69 ibid
15. There also exist sound doctrinal and jurisprudential reasons which support the opinion expressed above, but for the present the constitutional provisions and rules discussed should suffice to demonstrate to the PAC that the Supreme Court and its financial affairs are beyond the remit of the PAC. If, despite these clear provisions the PAC desires a judicial verdict it may approach the President to invoke the advisory jurisdiction of the Supreme Court.
16. In parting with this opinion, it may be added that PAC undoubtedly performs an important function in relation to the revenues of the federation. Being a standing committee of the National Assembly, it is entitled to the highest regard and deference in respect of the functions which it performs within the ambit of its powers under the Constitution and the rules.”
Summoning of SC Registrar to PAC illegal - thenews.com.pk
