ISLAMABAD - The Supreme Court on Monday was moved against the constitution of a commission to probe Memo scandal.

Shahid Orakzai, the petitioner, said that 30th December verdict had overlooked some important provisions of the Constitution. He said due to unwitting violations the order might be viewed or labelled as unconstitutional and illegal.

If the federal government had constituted the same Commission in the very same manner, it would breach the federal structure of the Republic and undermine the independence of the high courts. It must be noted that the 1956 law does not envisage the Federal Framework evolved in 1973 and that law is yet to be brought in accord with the Constitution as emphasised in Article 268. Mr Orakzai’s main contention was on the functioning of at least two high courts. He said every judge of the high court had to seek leave of absence, under the rules mentioned in Fifth Schedule and the Chief Justice of Balochistan High Court could not sit in Islamabad without such leave.

“In the absence of a chief justice, the president is duty bound under Article 196 to appoint one of the other judge of the high court, or may request one of the judges of the Supreme Court, to act as chief justice,” he said.

That in case any other judge of the high court takes up the office of CJ, the resultant vacancy of a judge in that high court is to be filled by an additional judge to be appointed under Article 197. None of the required steps were taken or intimated to the president before the chief justices of Balochistan and Sindh were ordered to initiate the probe.

He stated the order did not speak of the cost or expenditure of the commission in relation to the financial provisions of the constitution. The chief justices of BHC and SHC received their remunerations from the provincial consolidated funds of their respective province under Article 121 while there was no mention in the constitution about the remuneration of the Chief Justice of Islamabad High Court, a question still pending before the Supreme Court in petitions against the 18th and the 19th Amendment Acts. That by Article 200, the president was duty-bound to pay, in addition to the salary, the allowances to a judge of the high court who is appointed to an office other than that of a judge for any specific period, he contended.

The order did not clarify whether the total expenditure incurred on the commission would be charged upon the federal consolidated fund under Clause (d) of Article 81 or would be placed before the National Assembly in the supplementary budget statement, he argued. He said under the constitution the Supreme Court did not have the power to put financial burden on any province or make them share the costs of a commission.

The Supreme Court was expected to take prior (financial) approval from the president before it incurred any expenditure from the federal consolidated fund and public account.

He prayed that the court might implead the applicant as a party.