While directing big bosses of the apex regulatory body of corporate sector in the country to refrain from terminating services of the Securities and Exchange Commission of Pakistan’ Special Public Prosecutor on Saturday Additional District & Session Judge (ADJ) Islamabad Ms.Abida Sajjad issued notices to Chairman and Secretary of the Commission in the matter.
Challenging order of the Civil Judge in the matter on behalf of senior SECP Special Public Prosecutor Munib A. Cheema counsel for the appellant, Umer Ijaz Gilani contended that his client is being politically victimized by the new SECP administration on account of his association with former Chairman Zafar Hijazi, who was sacked amidst Panamagate scandal.
After hearing preliminary arguments in the matter, Additional District & Session Judge Abida Sajjad, issue a stay order restraining SECP from taking any adverse action against the appellant until the next date of hearing.
During the course of proceedings, Advocate Gilani argued that his client Cheema, a foreign qualified mid-career lawyer and a Chevning Fellow, was inducted into SECP in 2016 by the then Chairman Zafar Hijazi. At the time, Cheema served under the Chairman’s direct command and was destined for a stellar career in the regulator.
He apprised the court that in 2017, however, the Chairman was unceremoniously sacked by the Federal Government because of his tiff with the “establishment”during Panamagate scandal. With the firing of the Chairman, the Prosecutor’s fortunes also turned.
He alleged that the new bosses at SECP launched a campaign of harassment against all officers who were seen to be associated with the former Chairman Hijazi. Amongst the officers facing harassment was Arsalan Hijazi, son of Zafar Hijazi, who was recently issued a Show Cause Notice (SCN) and whose writ petition is pending before Islamabad High Court.
He further argued that Cheema too had fact finding inquiries opened against him in 2018 and 2019 saying he was not given a chance to defend himself and the reports of both inquiries were kept buried for months. However, in April 2020, when Cheema’s services were requisitioned by Competition Commission of Pakistan, his detractors at the Commission sprung into action. He added that they dug up long-buried inquiries against him and initiated disciplinary action. On October 22, he was issued a Show Cause Notice threatening him with termination.
Cheema has claimed that the entire proceeding against him are tainted with malice. The Show Cause, in particular, is blatantly illegal because it has been issued on the basis of an Inquiry Committee report which actually acquitted him. According to Clause 6.15.iv of the SECP’s manual, once a person is exonerated by the Inquiry Committee, an SCN cannot be issued to him. By prosecuting an acquitted employee, SECP has trampled its own rule, which indicates mala fides in law. Advocate Gilani urged the court to quash the proceeding against him.
Relying upon the Supreme Court’s famous judgment in Ashraf Tiwana’s case (2013 SCMR 1159), Gilani has argued that the law does not allow SECP to treat Special Public Prosecutors in a whimsical and arbitrary and vindictive manner. Unless the Courts intervene, a bad precedent will be set. Prosecutorial independence will be compromised. And the already sagging morale of career SECP officers will be hurt.
Earlier, Islamabad Civil Judge Saqib Jawwad had refused to grant a stay order in the matter relying upon S. 38A of the SECP Act, which bars the courts from issuing ex parte stay orders against SECP.
“A lawyer must take up disputes relating to legality and constitutionality of executive action in district courts as the civil courts are a beacon of hope for aggrieved persons and we must never allow that to change”, says Advocate High Court Umer Ijaz Gilani
Counsel for the appellant, Umer Ijaz Gilani contended that the learned Civil Judge has adopted an interpretation of S. 38A which goes against the grain of Constitution. “The right to obtain injunctive relief is a corollary of the constitutional right of due process (Article 4) and fair trial (Article 10A)– The superior courts have repeatedly held that ex parte stay can be granted in deserving cases, even against statutory bodies”.
After hearing preliminary arguments by counsel for Appellant, Hon’ble Judge Abida Sajjad, Additional District Judge, Islamabad granted a stay order against SECP and issued notices to parties of the case for November 13.
The writer heads a leading news wire service ‘The Law Today Pakistan’ commonly known as TLTP. He has a special focus on news relating to superior courts adjudication, access to right of information, civil, political, social and economic rights under the approach that existing cyber regime realization ensures procedural fairness in administrative law. He can be reached at firstname.lastname@example.org