The court also ruled that the petitions were not amenable because the employees were governed by the rules “which had explicitly been declared as non-statutory by the parliament.”
As a former senator, I participated in the parliamentary discussions on the subject. While the IHC is right in declaring that the rules were “explicitly declared as non-statutory by the parliament,” it may be instructive to briefly recall proceedings before the parliament.
Employees of the strategic organizations had challenged before various courts the arbitrariness of executive orders in matters of their employment which finally reached the Supreme Court in 2015.
The NCA claimed that it was an autonomous body dealing with sensitive matters and that its rules were non-statutory and thus beyond any judicial oversight. However, the apex court strongly disagreed.
In a landmark verdict in early 2016, it declared that the service rules of employees were statutory and decided to hear the case. The court noted that the statutory status of the rules neither undermined the autonomy of the NCA, nor disabled it to maintain effective control and secrecy of sensitive programs.
To the delight of everyone - except perhaps the powerful Defence Ministry - the court ordered a listing of all appeals and petitions before it for a decision.
The government then decided to stop the Supreme Court in its tracks. Through an ordinance on March 13, 2016, it amended the NCA Act 2010, declaring the employees’ matters as non-statutory and outside any judicial intervention. It even gave it backdated effect to abate the case before the Supreme Court.
Through this ordinance, employees of strategic organizations, who were previously excluded from the category of civil servants, were forced into a new relationship described offensively in the Statement of Objects and Reasons as “doctrine of master and servant.”
Simultaneously, the government moved a petition for a review of the Supreme Court order listing all cases before it for a decision.
Sensing the dangers of a likely rejection of the ordinance by the Senate, limitations imposed by the 18th Amendment against its renewal beyond 240 days as well as the Supreme Court likely striking it down, the Defence Ministry decided to place The National Command Authority (Amendment) Bill, 2016 before the parliament.
The amendment bill was quickly passed by the National Assembly and transmitted to the Senate the next day. The rush to get it passed by the Senate was palpable. However, the chairman referred it to the Senate’s Defence Committee for review. The present writer was also a member of the committee.
Strong objections were raised against the bill, which was essentially stopping the proceedings before the Supreme Court in its tracks. It amounted to pitting the parliament against the court. The Rules of Procedure specifically forbade the parliament from taking up issues already before the courts. Backdated legislation is also frowned upon by the courts. The “doctrine of master-servant relationship” and enslaving highly educated employees would result in demoralizing them and adversely impact the strategic programs. Why not wait for the Supreme Court decision?
The Defence Ministry was in no mood to listen. The ‘master-servant’ relationship was necessary to implement UN Resolution 1540 against threat of nuclear proliferation, it claimed.
The reminder that implementation of the UN resolution required investigations in the nuclear proliferation which had already taken place, and blamed on one lone individual, was met with a frown, silence and utter disdain.
The Senate Defence Committee also had three former generals and one colonel as members forcefully supporting the amendment bill. The committee passed the bill with a majority overruling the dissenting minority.
When the committee’s report was laid before the full House, the Senate chairman, noting very serious objections, referred the bill back to the committee for reconsideration.
Again, the Defence Ministry was urged not to push its case too hard as the matter was before the Supreme Court. It was pointed out that the populist and aggressive court would not take it lying down.
The representative of the Defence Ministry, however, tried to convince the committee that the Supreme Court believed in parliamentary supremacy and it was acceptable for the parliament to legislate even if the matter was before the court. Saying this, he appeared to grin. The Senate Defence Committee obliged and passed the bill with majority vote.
During deliberations, the Defence Ministry was also urged to provide some oversight by setting up a special tribunal for addressing grievances of the employees. It may be a body formed by the ‘masters’ but an independent, strong and credible body would at least offer a measure of credibility to the ‘servants,’ it was pleaded. To address the security concerns of the ‘masters,’ the tribunal may hold in camera hearings in cases of the ‘servants’ it was further pleaded. This suggestion too was not accepted.
The bill was finally passed by both Houses and accented to by the president and all this is part of the parliamentary record and in the public domain. One does not know what happened to the order listing the cases before the court.
This is how the parliament “explicitly declared as non-statutory” the rules prepared by the ‘masters’ for their ‘servants.’
The writer is a former senator.