No. F.

l-~'
, ••

2008-2009/B&A
OF P/'T-'ST' '1" , . _ .. -' "-.'.' .• A.

';1 fnR'E'I'~'()fJn"l'" ,- '-. VI ......

Islamabad,

December

1, 2011.

From The Registrar, Supreme Court of Pakistan,

Islamabad. To
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.-'~

The Additional Secretary, Public Accounts Committee, National Assembly Secretariat,

~

Islamabad.

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SUBJECT:

DEMANDING APPEARANCE OF REGISTRAR (PAO) SUPREME COURT OF PAKISTAN BEFORE THE MEETING OF PUBLIC ACCOUNTS COMMITTEE.

Dear Sir, Please 14.6.2011, Registrar permission Court requesting of, this refer Court to your letter the No.F.1(1)/2011-JSPAC the Full dated of the for Court

for resubmission before

of the matter qua appearance PAC, before the matter,

reconsideration.

am directed

to inform' you that

with the

of the, Hon'ble Chief of Pakistan, held on 27.7.2011 and

was placed the Full

before the Full after

..
i

meeting

Court

due.

consideration

has reiterated

its earlier decision communicated

to you vide

this Court's letter dated 10.6.2010 and has further directed decision duly approved Accounts 14.6.2011. 2. Pakistan. Yours faithfully,
vH(itd.j.--£}<~~.... ,-_'"

by'

all the

that copy of the

Hon'ble Judges to your

may be sent to the Public referred letter dated

Committee

in response

above

This issues

with the approval

of the Hon'ble Chief .Justice of

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,:

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NJI;' ,

(MUHAMMAD AFZAL) -DEPUTY REGISTRAR (ADMN) FOR 'REGISTRAR

;

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'"'DECISION (IF THE FULL COURT

MEETING

In the Enll Court Meeting held on 22.1 n.2009 the first item «n the agenda related to the q~estion appear before the Public A full discussion as to whether theRegistrar Accounts Committee of the Court was obliged of the National to

(PAC)

Assembly.

took place in the said meeting and. there was a general consensus constitutional provisions relating to the autonomy and

that in view of various independence

of this Courr,"ttre

PAC did· not have the jurisdiction of the Supreme and a synopsis

to ask the

Registrar or any other functionary relevant consTItutional are outlined below. provisions

Court to appear before it. The of the reasons for this opil';;on

2.

However,

befere

examining

the Constitution,

two aspects

of the matter

need to be highlighted: FirstlY, that the Supreme accounts Court is neither shy of a scrutiny a decision on the matter. of its The by the the

and nor is it avoiding

scrutiny of the accounts constitutionally Auditor .initiative, transparency even before pre-audit the General has mandated

of the Supreme functionary

Court is undertaken for the purpose Court,

namely,

of Pakistan. put in place

The Supreme a pre-audit and accounting

on its own whereby is ensured

mechan'is~l, processes

in its spending

a sum is disbursed is undertaken which

from the budget of the Court. This

exercise

in association
has opened (AGPR) a

with the office of counter of the .. of

Auditor

General, General

Accountant the Supreme payments

Pakistan Revenues

in the premises

Court building.

It it further to be emphasized cell of the AGPR General

that all are re-

scrutinized

by the pre-audit

authenticated

by the o i.ice of the Auditor practices and procedures.

in accordance

with its standard

SecondJy,_..1t is to be clarifled discussed below, guarantee

that the cOrlstitutional

provisions,. and are organs of

the autonomy

of the Court

meant to ensure its independence the State viz. Parliament~d

from the other piincipal

the Executive .. s A

~ point of princi('~

I

/

and judicial efficacy. this autonomy- and independenc.e has to be recognized, 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 Ii. scheme quite clearly discernable constitutional provisions substantive 4. provisions which supports the above opinion. from specific Among these in the

is para 10 of the Preamble

which has been incorporated

part of the Constitution as para 10 of the Objectives Resolution.

More specifically. the. provisions of Articles 78 to 88 of the Constitution
10

relate to financial procedure and budgetary allocations. Of particular relevance

the matter under discussion. is the structural scheme highlighted in Articles 78 to 83 of the Constitution. revenues received This scheme unambiguously which form distinguishes part oIthe between Federal

by the Government.

Qj;msolidated Fund as opposed to Public Account

all other

moneys which ate to be credited to the and the

of the Fedol!ltion. 'It is so specified in Article 78

distinction -runs throughout Constitution. 5.

the provisions contained in Articles 78 to 88 of the

As discussed in the mee.ting on 22.10.2009. "the remuneration payable to of the Supreme Court" (Article ~lea)} .and "the administrative

the Judges

expenses ip.cluding the remuneration

payable to the officers and servants of the

Supreme C~urt" {Article 8Ieb)}. are amounts which ate charged upon the Federal Consolidated Federation. 6. Article 82 of the Constitution mandates and reinforces the distinction Fund and the same are not paid out of the P·ublic Account of the

between the Federal Consolidated Fund on the one hand and other expenditure paid from the Public Account of the Federation. Of special significance . context" is' Article Budget Statement 82(2) which clearly lays down that as relates to other expenditure
50

in this

much of the Annual to the

shall be submitted

Nati('iiY4'4;~.~einbly in the fo.rn of.demands for grants and the National Assembly hM"~~~~1.:;gi~en 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 National Assembly under Article 82," These demands for grants are met from the Public Account of the Federation, The Constitution separately deals with
required

the "sums

to meet the expenditure charged upon (he Federal Consolidated Fund." It is in the backdrop of the constitutional scheme outlined in the above

7.

referred provisions of the Constitution that the power and jurisdiction of the PAC needs to be exam.i!:led..The National Assembly has, in exercise of its powers under Article 67(1) 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 Conunittees of the Assembly, of which the PAC is one. Rule 202 .specifies the composition of the PAC. While Rule 203 sets out its functions. S,ub-rule(l) of Rule 203 provides as under:"203 FUllct;ons.showing (1) The Commiltee shall examine the accounts

the appropriation

of .sums g[fj!1WJ....~ltheAssembl)'

for. the
and such

expenditure of the GoYernment, the 'a~nuol finance .~ccounts of {he Govenirnenl, the rep,!~f afthe
Auditor~G~l1eral of Pakistan
(0

other mailers as the Ministerfor Finance may refer (underlining added for emphasis) It is clear that the words "grarite~_b)i.(he_AssynbJy"
c:=._._

it"

used in Rule 203, have
.

reference to the demands for grants referred to in Article 82(2) of the Constitution
---·"--·~-·T-·'·-··--'''·'··"~'

in contradistinction
. Fund"

to "expenditure

charged upon the Federal Consolidated

which is covered b)' ~ic~~.,.8~(12 of the Constitution and over which the

National Assembly has no oversight, vpting 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 no! be submitted to the vote of the National Assembly.
,j

This expenditure

is, therefore, distinguishable from "deman~{s} [o_r_gcql2~[sJ" hich mayor may w not be accede~.to by the Natioo.a1Assembly. 8. Bearing in mind the above constitutional structure, even if the wider

scheme ensuringi:n:dependence_ofthe Judiciary is, for thetime being kept aside, it

L-.....-. --

G,.

/

will become

evident that Rule 203 only empowers tbe PAC to examine Lne of sums ~ by the Asse,moly, Since the

acCOWlts showing the appropriation

sums budgeted for the Supreme Court are. a charge OIl the Pederai Consolidated: FU]1d these sums, by defll1itioIl, are not. amou.nts granted by the' Assembly. As such the PAC carmol exercise any powers in relation to the scrutiny of the same. This, in short, eonclusivelyestablishes. exammat.ion or

that the PACcan.not

require the attendance of the Registrar to question hirrr<tS'1.hePrincipal AeCOUl'1ts Officer (PAO) of the Supreme Court 9 . In addition
1.0

the above, Rule 203 also specifies the remit of the PAC

which is confined to a scrutiny of the accounts of the Go.venullent. A plain reading of the Constitution will show that the Supreme Court is not part of the Government. Constitution Constitutional

In the context of the matter now being considered, Article 8 I of the
itself draws the distinction between the Government and those

ftmctionari'es who are enumerated in dame (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 Govcrmnent to

fUllctiolls of the Supreme Court is to maintain a check on the

ensure that it remains witirin the. limits prescribed for it by the Constituti,on, 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 accou.nts showing "Ine appropriation of sums granted by the [National)
i

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 forthis framework is also self-evident. It ensures that the Court can perfolTIl its ~onstitutionaJ role, without ll1terference from Parliament would, therefore, seriQusly compromise the independence it

of the Judiciary and

would, thus, be .incotrcelvable for the Registrar of the·Supreme Court as its PAO t9,~ppearQef'Qreth.e PAC and be questioned in relation . to the Court's budget and ;,.
'

'",--_.

~~pfopda~tll!}strott\the
o· ,

same.
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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 nOI defined in these rules shall. unless the COI1-;'XI therwise requires. have the meaning assigned to them in the o
Constitution. "

12.

A reading of Rules 198 and 202 will make it clear that the PAC is a

Standing Commi.tte.l:..on Public Accounts and as such, its reilii! extends to suctraccounts. A simple reading of Article 78 of the Coristitutio~ is all that is needed, to 'ascertain what constitutes Public Accounts. Clause 2 of Article 78 defines the
... ···_···..···w. '" ~...,.. ..,. _ ~ __ '."_", , ~ ....~.' ,:' _, ~'."'-'.."~~,...'-.;"'".,.•

sums which are to be "credited to the Public Account of (he Federation. " The term 'Public Accounts' therefore, as used in the Rules can only mean the various accounts which relate to moneys credited to the PublicAccount of the Federation
'~-.... .

and nothing else. It is these s~ms 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 froIll,thePublic 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 (l) 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 Parliernentin the following terms:"69(2) No officer or member of [Maj!is-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 (Parliamentj], shall be subject/o ~rcise the 'jurisdlerion orany court,'n respect by. him of those powers" _

(underlining added for emphasis)

6 14.
Here, it may also be appropriate to point out

that in line with the
from its

procedure

adopted by the Supreme Court for regulating disbursements

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 stationary, printing, library books, transport, medical bills. etc, arc delegated Pakistan by the Chief Justice, Judges It is, therefore, the Chief Justice, of and approve

and other senior

whoscrutinize

requisitions

disbursements

from the budget. The expenses disbursed out of the Supreme Court and approved by tile Chief Justice of Pakistan or

budget are also to be ex;nined

by other Judges of the Court, in accordance with their delegated authority. Article 68 of the Constitution stipulates as under:"68. No discussioll shall rakeplace ill {Majlis·e-ShoQra (Parliament}j •

with respect to the conduct of any Judge of the Supreme Court or of a High ,Court in the discharge of his dulies. "

There is a cOJ).1pletebar on discussion

on the conduct of Judges in Parliament. arid

Such conduct would include the discharge of their duties in the adminlstrative

financtal affairs of the Court. The PAC, it may be noted, is only a Standing Committee. of the National Assembly. If the entire Parliament (Majlis-c-Shoora)

is barred from discussing the conduct of any Judge in the discharge of his duties, it should be evident that a Committee of one Chamber of the Parliament will not Article 68 ibid is beinghighiighted

be in a position to hold such discussion.

becB'.Ise the PAC while discussing the accounts of variolls Ministries, Divisions, State Corporations of the functionaries and Autonomous Bodies questions and discusses the 'conduct in respect of the above. The

in such Ministries etc, Similar proceedings

Supreme Court are manifestly

barred under Article 68 reproduced

Article mirrors the autonomy of the Parliament, in certain matters referred to in Article 69 ibid. 15, There also exist sound doctrinal and jurisprudential reasons which support provisions and

the opinion expressed above, but for the present the constitutional

Rules discussed should suffice to demonstrate to the PAC that the Supreme C01.!lt and its financial affairs are beyond the remit of the PAC. If, despite these clear

,

! previsions the PAC desires a judicial verdict, it may a.pproach the President to of the Supreme Court.

invoke the advisory jurisdiction 16.

In parting with this opinion, it may be added that the PAC undoubtedly an important function in relation to the revenues of the Federation.

performs

Being a Standing Committee of the National Assembly, it is entitled to the highest regard and deference in respect of the functions which it perfom'is within the

ambit of its powers under the Constitution and the Rules.

Signed by all the Hon'ble Judges

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