Federation of Paksitan through Federal Secretary Ministry of Economic Affairs Vs Ms Human Rights Commission of Pakistan

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

I.C.A. No.59781/2024

Federation of Pakistan through VS. M/s. Human Rights Commission the Federal Secretary, Ministry of Pakistan and another of Economic Affairs

Date of hearing 03.03.2026 Appellant by Mirza Nasar Ahmad, Additional Attorney General Mr. Asad Ali Bajwa, Deputy Attorney General Respondent No.1 by Muhammad Saqib Jillani, Advocate Ch. Muhammad Iqbal, J:- Through this single judgment, we intend to decide the titled appeal [I.C.A. No.59781/2024] alongwith I.C.A. No.59796/2024 and I.C.A. No.59818/2024 as all these appeals have arisen out of the same judgment dated 06.09.2024 of the Hon’ble Single Judge in Chamber.

2.Through these intra court appeals, the appellant has challenged the validity of judgment dated 06.09.2024 passed in Writ Petition No.15453/2024 [cited as Human Rights Commission of Pakistan’s case1] whereby the Hon’ble Single Judge in Chamber allowed the writ petition and declared the “Policy for Local NGOs/NPOs Receiving Foreign Contributions- 2022” issued by the appellant after approval of Federal Cabinet vide Case No.559/Rule-19/2022 dated 11.11.2022 as unlawful, invalid and of no legal effect.

3.Brief facts of these cases are that the respondents through their respective Writ Petitions challenged the “Policy for Local Human Rights Commission of Pakistan Vs. Federation of Pakistan through Secretary, Ministry of Economic Affairs, Islamabad and another (PLD 2025 Lahore 7)

NGOs/NPOs Receiving Foreign Contributions-2022” [hereinafter referred as “Policy”] with the inter-alia contentions that respondent No.1 is a civil society organization registered in 1987 under Societies Registration Act, 1860. That it is an independent nonpolitical human rights body and committed to bonafidely endeavour for wellbeing of humanity, its civil, political, economic, social, cultural rights for all citizens. That the respondent No.1 works in range of areas including civil, political, cultural and environmental rights. That the respondent No.1 is conducting operation in accordance with the provisions of the Societies Registration Act, 1860 as well as all the local and Federal laws. That the financial accounts of the respondent No.1 are also audited by the renowned chartered accountants and each and every penny received by the respondent is accounted for. The respondent is registered with Pakistan Center for Philanthropy which is the designated certification agency of Federal Board of Revenue, Government of Pakistan. That in the year 2013, the Federal Government introduced “Policy for Regulation of Organizations receiving Foreign Contributions”. That the said Policy was challenged through filing a Constitutional Petition before the learned Sindh High Court who annulled the said policy-2013 through Marie Stopes Society’s case2. The respondent now challenged the Policy on the ground that this Policy has also been issued by the Federal Government without any authority of law as such as per the Marie Stopes Society’s case, this Policy may also be declared null and void. That the Policy is violative of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred as “Constitution”]. The appellant filed reply of the writ petitions by raising therein all the legal and factual pleas. The Hon’ble Single Judge in Chamber through the judgment dated 06.09.2024 allowed the writ petitions and declared the “Policy for Local NGOs/NPOs Marie Stopes Society Vs. Federation of Pakistan through Federal Secretary and 4 others

(2022 CLC 880)

Receiving Foreign Contributions-2022” issued by the appellant after approval of Federal Cabinet vide Case No.559/Rule- 19/2022 dated 11.11.2022 as unlawful, invalid and of no legal effect. Hence, these Intra Court Appeals.

4.Arguments heard. Record perused.

5.The controversy involved in this case can be summarized into two questions:

i. Whether the Federal Government is competent to make policy for regularization NGOs/NPOs who receive foreign contributions?

ii. Whether interference can be made in the policy matters in Writ jurisdiction?

Coming to the first question, it is appropriate to say that our democratic and public system is regulated by the Constitution of the Islamic Republic of Pakistan, 1973 wherein under the trichotomy of power jurisdictional domain of the Legislative, Executive and Judiciary has elaborately been described therein. Here the rule making power as well as the policy decision of the Executive are looked into on the touchstone of the constitutionality, law and fundamental rights of the public. As per the scheme of the Constitution, under Article 90 read with Article 99 of the Constitution, the Federal Government is authorize to make rules for allocation and transaction of its business. For ready reference, aforesaid Articles are reproduced as under:

“90. The Federal Government.__ (1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation.

(2)In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.

99.Conduct of business of Federal Government.__ (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President.

(2)The Federal Government shall by rules specify the manner in which orders and other instruments made and executed in the name of the President shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the President.

(3)The Federal Government shall also make rules for the allocation and transaction of its business.”

The Federal Government framed Rules of Business 1973 under the aforementioned Articles of the Constitution which provide a comprehensive mechanism for the allocation of Governmental business among Divisions, the procedure for inter Division consultation, the hierarchy of decision making from Secretary through the Minister to the Prime Minister and the Cabinet. Any policy decision taken and notified by the Federal Government must be legally valid and procedurally in a complete conformity with the relevant provisions of these rules. Further, the rules are supplemented by several schedules. Schedule I lists all Ministries and their constituent Divisions. Schedule II distributes Governmental business among the Divisions. Schedule III identifies attached Departments. Schedules V-A and V-B enumerate cases requiring the orders of the Prime Minister and the President respectively. These schedules have the same force and authority as the Rules themselves, and compliance with them is mandatory for all Divisions. The Rules of Business have been made under Article 90 read with Article 99 of the Constitution and the Hon'ble Supreme Court of Pakistan in Tariq Aziz-ud-din’s case3 has declared that due weight is required to be given to the Rules of Business which have got constitutional sanction and has held as under:

“22.... In the cases of Zahid Alchtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530, Federation of Pakistan Tariq Aziz-ud-din and others (2010 SCMR 1301)

through Secretary, Planning and Development Division, Islamabad v. Mu Akram and others 1995 SCMR 1647 and Aman Ullah Khan and others v. the Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092, it has been held that due weight is required to be given to the Rules of Business which have got constitutional sanction...”

It was not just an observation and in order to arrive at this conclusion, the Hon’ble Apex Court placed reliance on earlier judgments rendered in this regard in Aman Ullah Khan and other4.

6.Furthermore, this Court in Amin Jan’s case5 declared that the Rules are to be placed on public policy and designed to safeguard effectively the State interests and to act in consonance with these rules is a clear duty cast on all the Divisions/Ministries of the Federal Government. For ready reference, the relevant portion of judgment (supra) is reproduced as under:

“6. I feel that the various Departments of the Federal Government involved in this case, i. e. the Ministry of Establishment, the Ministry of Communication and the Director-General T & T are acting in oblivion of the mandatory requirements of rule 14 of the Rules of Business framed under the Constitution of the Islamic Republic of Pakistan, 1973 as kept in force through the Provisional Constitution Order, 1981. This rule reads as under:- "14. Consultation with the Law Division.---(1) The Law Division shall be consulted--- a) on all legal questions arising out of any case; b) on the interpretation of any law;

c) before the issue of or authorization of the issue of an order, rule, regulation, by-law, notification, etc. in exercise of statutory powers;

d) deleted vide Cabinet Division No. 104/10/76-Min, dated 26-3-1976.

e) before instituting criminal or civil proceedings in a Court of law in which the Government is involved; f) whenever criminal or civil proceedings are instituted against the Government at the earliest possible stage; and

Aman Ullah Khan and others Vs. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), Federation of Pakistan through Secretary, Planning & Development Division, Islamabad Vs. Muhammad Akram and others (1995 SCMR 1647) and Zahid Akhtar Vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC Amin Jan Vs. Director-General, T & T and others (PLD 1985 Lahore 81)

g) before the appointment of a legal adviser in any Division or any office or corporation under its administrative control and the Law Division will make its recommendations after consultation with the Attorney General.

7.From a plain reading of the above provisions, it is crystal clear that it is a self-contained code. For the purposes of the present case, it should suffice to observe that the policy of law, inter alia, appears to be to achieve harmonious functioning of various Divisions and Ministries of the Federal Government and further to ensure that they seek and act on competent expert advice in respect of (i) all legal questions arising out of any case; (ii) on the interpretation of any law; and (iii) at the earliest possible stage whenever any civil or criminal proceedings are instituted against the Federal Government. These Rules of Business are thus based on public policy and designed to safeguard effectively the State interests. To act in consonance with these rules is a clear duty cast on all the Divisions/Ministries of the Federal Government. This can be clearly spelt out from the use of the word "stall" in the opening part of rule 14 of the Rules of Business. Reference may, in particular, be made to sub-clauses (a), (b) and (f) to sub-rule (1) of rule 14, as they are relevant for the purposes of this case. I am, therefore, constrained to observe that Law, Rules and Regulations of obligatory character are meant to be obeyed and honoured by their observance and not through breaches. Any departure from the aforesaid provisions is bound to lead to anomalous results and prove injurious to smooth transaction of the business of the Federal Government by its various Divisions and Ministries. The letter and spirit of the law, when observed, will also have the wholesome effect of avoidance of frivolous litigation and waste of public time and expense. Non-observance of these rules, on the other hand, is fraught with the danger of giving rise to unnecessary litigation and bound to impede the speedy dispensation of justice. It is against public policy and public interest to burden the Courts with matters which ought to be settled at the depart- mental level.”

The Hon'ble Supreme Court of Pakistan in Messrs Mustafa Impex’s case6 has held that Article 99 of the Constitution Messrs Mustafa Impex, Karachi and others Vs. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808)

empowers the Federal Government to make rules for the allocation and transaction of its business and held as under:

“42. We are now in a position to examine the contents of the Rules of Business themselves. The present formulation of the Rules of Business dates back to 1973. A quick synoptic overview of the relevant Rules would not be out of place at this point of time. Rule 2, clause (iii) defines "business" as meaning all work done by the Federal Government. Then follows Rule 3 which relates to the allocation of business and clause (3) thereof provides that the business of Government shall be distributed among the various Divisions (i.e. the administrative units) in the manner indicated in Schedule-II. Rule 4 deals with the organization of Divisions and Rule 5 bears the heading "Transaction of Business". It prescribes that no important policy decision is to be taken except with the approval of the Prime Minister. The responsibility of a Minister, as head of a Division, is to assist the Prime Minister in relation to the formulation of policy and also to keep him informed of any important cases disposed of by him. Subject to the above, a Minister is responsible for the policies of his Division. Clause (8) further clarifies that the business of a Division shall ordinarily be disposed of by, and under the authority of, the Minister in charge and Clause (9) lays down the responsibilities of the Secretary. Clauses (8) and (9) of Rule 5 insofar as relevant are reproduced below:- "(8) The business of the Division shall ordinarily be disposed of by, or under the authority of the Minister- in-Charge.

(9)The Secretary shall -

(a)assist the Minister-in-Charge in the formulation of policy;

(b)duly execute the sanctioned policy;

(c)submit all proposals for legislation to the Cabinet with the approval of the Minister;

(d)Keep the Minister-in-Charge generally informed of the working of the Division and of any important case disposed of without reference to the Minister;

(e)be the principal accounting officer of his Division, its Attached Departments and Subordinate Offices, and ensure that the funds controlled by him are spent in accordance with the rules laid down by the Finance Division;

(f)Subject to the provisions of these rules and with the approval of the Minister-in-Charge issue standing orders laying down the manner of disposal of cases in

the Division, including the distribution of work amongst the officers of his Division and such orders may specify the cases or class of cases which may be disposed of by an officer subordinate to him; and

(g)be responsible for the careful observance of these rules and, where he considers that there has been any material departure from them, either in his own or any other division, he shall bring the matter to the notice of the Minister-in-Charge and, if necessary, to the notice of the Prime Minister or the Cabinet."

43.Rule 6 reflects the constitutional concept of individual and collective responsibility and reads as under:- "6. Individual and collective responsibility. - The Cabinet shall collectively be responsible for the advice tendered to, or the executive orders issued in the name of the President whether by an individual Minister or as a result of decision by the Cabinet; but the Minister shall assume primary responsibility for the disposal of business pertaining to his portfolio."

Rule 7 provides that, subject to Article 173, all executive actions of the Government shall be expressed to be taken in the name of the President. Rule 12 renders consultation with the Finance Division mandatory in relation to matters which may involve the relinquishment, remission or assignment of revenue or expenditure for which no provision exists in the Budget. Rule 14 bears the heading "Consultation with the Law, Justice and Human Rights Division" and Clause (1) is material and is reproduced below insofar as relevant:- "14. Consultation with the Law, Justice and Human Rights Division.---(1) The Law, Justice and Human Rights Division shall be consulted--

(a)on all legal questions arising out of any case;

(b)on the interpretation of any law;

(c)before the issue of or authorization of the issue of an order, rule, regulation, by-law, notification, etc. in exercise of statutory powers;"

Rule 15 makes it mandatory to obtain the approval of the Prime Minister in relation to important policy matters.

44.Rule 16 is an important rule and, insofar as material, is reproduced below:- "16. Cases to be brought before Cabinet.---(1) The following cases shall be brought before the Cabinet:--

(a)proposals for legislation, official or non-official, including money bills;

(b)promulgation and revocation of Ordinances;

(c)the budgetary position and proposals before the presentation of the Annual Budget Statement and a Supplementary Budget Statement or an Excess Budget Statement under Articles 80 and 84.

(d)Proposals for levy, abolition, remission, alteration or regulation of any tax and floatation of loans;

(e)to (m)

(2)Notwithstanding the provisions of sub-rule (1), the Prime Minister may in any case give directions as to the manner of its disposal without prior reference to the Cabinet."

It will be noted, and this is relevant for purposes of the present matter, that it is mandatory to bring any proposal for the levy, abolition, remission, alteration or regulation of any tax to the Cabinet. Whilst it is no doubt true that the Prime Minister has been given discretionary power in the matter it is clear that the exercise thereof is circumscribed by the following conditions:

(i)There must be a conscious application of mind by the Prime Minister to the existing circumstances justifying the need for this departure through passing of a reasoned and formal order prior to the action taken, and

(ii)More critically, and definitively, a determination whether the constitutional provisions justify such a departure? This is a matter which we will examine infra.

We note that, ex facie, this Rule has been violated by the Finance Division in issuing the impugned notification merely on the basis of the approval of the Secretary and the Advisor. This is a matter we will further discuss at a later stage in this judgment, when we will also consider the question of the constitutionality of Rule 16(2).

45.Rule 17 deals with the method of disposal of cabinet cases and is reproduced below:

"17. Method of disposal of Cabinet cases. - (1) Cases referred to the Cabinet shall be disposed of -

(a)by discussion at a meeting of the Cabinet; or (b) by circulation amongst Ministers; or

(c)by discussion at a meeting of a committee of the Cabinet.

Provided that the decisions of the Committee shall be ratified by the Cabinet unless the Cabinet has authorized otherwise."

The procedure for the submission of matters for decision making by the Cabinet is set out in Rule 18 and again is important. The relevant provisions thereof are reproduced below:- "18. Manner of submissions of Cabinet cases. (1) In respect of all cases to be submitted to the Cabinet, the Secretary of the Division concerned shall transmit to the Cabinet Secretary a concise, lucid and printed memorandum of the case (hereinafter referred to as the "summary"), giving the background and relevant facts, the points for decision and the recommendations of the Minister-in-Charge. In the event of the views of the Division being different from the views of the Minister both the views shall be included in the summary. Provided that the Executive Director, Higher Education Commission, shall be the ex-officio Federal Secretary and may submit summaries, or cases to cabinet directly with the approval of Chairman, Higher Education Commission, having the status of a Federal Minister. (note:- this proviso, however, has been deleted vide SRO 226(I)/2010 dated 2.4.2010)

(2)In the case of a proposed legislation to which approval is sought in principle, the summary shall bring out clearly the main issues to be legislated upon.

(3)The summary shall be self-contained as far as possible, not exceeding two printed pages and may include as appendices only such relevant papers as are necessary for the proper appreciation of the case. The number of copies of the summary and the form in which it is to be drawn up shall be prescribed by the Cabinet Secretary.

(4)Where a case concerns more than one Division, the summary shall not be submitted to the Cabinet unless it has been considered by all the Divisions concerned. In the event of a difference of opinion between them, the points of difference shall be clearly stated in the summary, a copy of which shall be sent by the sponsoring Division to the other Division concerned simultaneously with the transmission of the summary to the Cabinet Division.

(5)All draft Bills, Ordinances or Orders shall be submitted to the Cabinet after they have been scrutinized by the Law, Justice and Human Rights Division, and no changes shall be made therein except in consultation with that Division.

(6)No case for inclusion in the agenda of a meeting of the Cabinet shall be accepted unless it reaches the Cabinet Secretary at least several clear days in advance of the meeting:

Provided that, if a case is urgent and is required to be taken up at short notice, the Secretary concerned will obtain approval of the Prime Minister for its inclusion in the agenda before it is transmitted to the Cabinet Secretary.

(7)It shall be the duty of the Cabinet Secretary to satisfy himself that the papers submitted by a Secretary are complete and in appropriate form. He may return the case until the requirements of the rules have been complied with. If the Cabinet Secretary is satisfied that the case does not merit consideration of the Cabinet he may advise the matter to be placed before an appropriate forum or require it to be submitted to the Prime Minister."

46.The procedure to be followed in Cabinet meetings is set out in Rule 20 which prescribes that they are normally to be held once a week (we note, in passing, that it appears that presently this Rule is being honoured more in the breach than in the observance thereof. The political implications of this do not concern us here, but we will revert to the question of the constitutional implications flowing from decision making lacking the prior sanction of the Cabinet). It may be noted that it is not mandatory for the Prime Minister to preside at all meetings of the Cabinet. In this connection, reference may be made to Clauses (3) and (4) which are reproduced below:- "20. Procedure regarding Cabinet Meetings.

(3)The Prime Minister may authorize the holding of Cabinet meetings during his absence.

(4)The Prime Minister shall preside at all Cabinet meetings. In the absence of the Prime Minister a Minister nominated by the Prime Minister shall preside. The decisions taken in the Prime Minister's absence shall be subject to the approval of the Prime Minister, unless the Cabinet feels that a particular case is so urgent that immediate action may be taken in anticipation of the Prime Minister's approval." Rule 20, clause (6) is an important provision and provides that no case shall be discussed in Cabinet, nor any issue raised, without a summary relating to it first being circulated. There is a proviso, in terms whereof this requirement may be dispensed with but for that purpose a formal order of the Prime Minister is required. What is significant about the above provisions is that they indicate that a mere formal consent of the Cabinet without following the detailed provisions in the Rules may render the decision open to question. The Cabinet, being the supreme body of the Executive, with a high constitutional status, cannot and ought not to be treated as a mere rubber stamp for decision making by the Prime Minister. Article 90 envisages a parliamentary form of Government which is based on decision making by the

Cabinet. To turn the Cabinet into such a rubber stamp in pursuit of decision making by the Prime Minister to the exclusion of his Cabinet would violate the letter and spirit of our Constitution. That would be to reduce a cabinet form of Government into a prime ministerial one which is a concept which is alien to the Constitution, as it stands at present. However, it should be noted in passing, that the original formulation of the constitution, was certainly more amenable to a greater construction of power in the hands of the Prime Minister (originally Article 48 of the constitution contained a clause stating that the orders passed by the President required for their validity the counter-signature of the Prime Minister. It is, on the face of it, a little difficult to reconcile this clause with the dignity and status of the head of state). We shall revert to this aspect of the matter later.

47.It will be recollected that the word "business" was defined in terms of Rule 2 to mean all work done by the Federal Government. This necessarily means that the concept of business of Government includes not merely executive matters but also those which pertain to legislation. This is borne out by the provisions of Part-E of the Rules which bears the heading "Legislation". Rule 27 provides for official Bills relating to proposed legislation. The procedure envisages the involvement of the Law Division in relation to drafting and so forth. In all cases the draft Bill has to be put up before the Cabinet by the concerned Division for its approval. Even legislation of a formal nature forms the subject matter of the Rules and sub-clauses (7) and (8) of Rule 27 are relevant in this context.

"(7) Legislation relating to the codification of substantive law or for the consolidation of existing enactments or legislation of a purely formal character, e.g., repealing and amending Bills and short title Bills, may be initiated in the Law, Justice and Human Rights Division. It shall, however, consult the Division concerned, if any, which shall consider the draft legislation from the administrative point of view and send their views to the Law, Justice and Human Rights Division.

(8)After taking action in terms of sub-rule (5), the Division concerned shall forward to the Law, Justice and Human Rights Division the draft legislation in its final form with a statement of objects and reasons duly signed by the Minister-in-Charge. The Law, Justice and Human Rights Division, after satisfying itself that all legal requirements have been complied with for the introduction of the Bill in the Assembly or, as the case may be, the Senate, transfer the Bill along with the statement of objects and reasons to the Parliamentary Affairs Division for arranging its introduction in the appropriate House."

50.The importance of the Rules of Business cannot be understated within a constitutional framework. Although, generally speaking, it is correct to state that all rules are binding for, and in relation to, the powers thereby conferred on the Executive, this is especially so in the case of the Rules of Business. The concept of rules, as is obvious, is subsumed in subordinate or delegated legislation. It is an integral part thereof. All legislation is binding and should be acted upon. The Federal Government does not have the prerogative to follow, or not to follow, legislation, both primary as well as secondary or delegated, in its discretion. The authority to frame rules is normally conferred by an Act of Parliament. In the case of the Rules of Business this authority flows from the Constitution itself. As noted above, Clause (3) of Article 99 makes it mandatory for the Federal Government to make rules which cover two related sub-fields; firstly, for and in relation to the allocation of the business of the Government and secondly, for transacting the said business. This clause is to be read as essentially ancillary to the overarching concept of the rule of law. The Constitution confers vast powers on the Government for the transaction of executive business. There is no reason to suppose, or believe, that the framers of the Constitution intended, in disregard of the explicit language employed, that the Federal Government could, in its discretion, either follow, or not follow, the provisions of the Rules of Business. The framer of rules is as much bound by the content thereof as anyone else is subject thereto. These are basic precepts of constitutional interpretation. To allow the Executive to depart from the language of the Rules, in its discretion, would be to permit, and legitimize, unconstitutional executive actions. Quite independently of the above, there is ample case law stressing the importance of a structured exercise of discretionary power. In this case the discretionary executive powers have already been fettered by the Constitution. The framing of rules for this purpose is inextricably linked to the guided exercise of official power. The following of the Rules of Business is a salutary exercise intended to enhance, and amplify, concepts of good governance. We have no doubt that it is mandatory and binding on the Government, and so hold. A similar view was taken by this Court in the case of Ahmad Nawaz Shah (supra).”

In exercise of such power, the Federal Government has framed the Rules of Business that serve as a source of guidance on the instant subject. The Rules of Business are constitutionally mandated rules and must be followed by the Government in carrying of its functions.

7.Further, Rule 15(1)(a) of Part C of Rules of Business, 1973 requires that the making of an important policy or a departure from any policy cannot take place until and unless approved from the Prime Minister. Hence, such decision stands at a higher pedestal from the ordinary business transacted by the Government under the Rules of Business 1973. The Division has been defined in Rule 2(vi) of the Rules of Business as the administrative unit responsible for the conduct of business of the Federal Government. Rule 3 of the Rules of Business pertains to the allocation of business to the Ministries and the Divisions, while Rule 5 pertains to transacting the business of the Federal Government. Under Schedule II, Entry 14-A(12), the Human Rights Division has specifically been assigned the subject of “Human rights NGOs”. The Policy 2022 was issued and approved by the Federal Government in total conformity with the Rules of Business 1973. It was promulgated with the objective of regulating and enhancing the effectiveness of foreign funding received by the NGOs/NPOs registered in Pakistan. It is a comprehensive regulatory instrument covering the scope, eligibility, application, procedure, approval mechanism, monitoring, suspension and grievance redressed framework governing all locally registered NGOs/NPOs. The Supreme Court of India in Rai Sahib Ram’s case7 has held that “...The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modeled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative Rai Sahib Ram Jawaya Kapur and others Vs. State of Punjab [1955 AIR (SC) 549]

branch of the State.” The Supreme Court of India reiterated this view in Union of India’s case8. The executive can issue guidelines for this purpose and there is no need for enacting law.

For what has been discussed above, the answer to the question formulated above is that the Government is fully authorized to frame the “Policy for Local NGOs/NPOs Receiving Foreign Contributions-2022”.

8.Now comes the next question that whether this Court can interfere in the policy/rules framed by the Government? The Ministry of Economic Affairs, Government of Pakistan while notifying the “Policy for Local NGOs/NPOs Receiving Foreign Contributions-2022” vide Memorandum dated 24.11.2022, issued a comprehensive regulatory framework governing the receipt, utilization, monitoring, and accountability of foreign contributions by locally registered NGOs and NPOs in Pakistan. In terms of Rule 3(3) read with Schedule II, Entry 9 of the Rules of Business, the Ministry was constitutionally competent authority to promulgate such a Policy, as its mandate encompasses the assessment, programming, negotiation, coordination, and accounting of external economic assistance, functions directly reflected in the regulatory mechanisms prescribed under the Policy. Furthermore, the Policy, being a matter of significant political, economic, and administrative impact, squarely attracted the requirements of Rules 16(1)(j) and (k), necessitating consideration by the Federal Cabinet, which requirement was duly fulfilled as evidenced by its approval vide Cabinet case No. 559/Rule-19/2022 dated 11.11.2022 and subsequent communication by the Cabinet Division in accordance with Rule 24(2)(b). The prompt issuance of the Office Memorandum thereafter demonstrates compliance with Rule 24(1), and the recorded Cabinet approval confirms that the matter Union of India Vs. Moolchand Khairati Ram Trust [(2018) 7 S.C.R 939]

was properly deliberated and decided in a Cabinet meeting under Rule 17(1)(a), thereby establishing that the Policy was lawfully issued in full conformity with the applicable constitutional and procedural framework.

The framing of Policy falls within the realm of the Public Policy and the Courts in the exercise of their powers of judicial review, ordinarily, do not interfere therewith and exercise judicial restraint. The Hon'ble Supreme Court of Pakistan in Senior General Manager’s case9 has held in this regard that “...The ambit and purview of judicial review of Government policies is now well settled and defined and thereunder the Court can neither act as an appellate authority with the aim of scrutinizing the propriety, suitability, and/or adequacy of a policy, nor may it act as an advisor to the executive on matters of policy which they are entitled to formulate. The object of judicially reviewing a policy is to ascertain whether it violates the fundamental rights of the citizens, or is at variance to the provisions of the Constitution, or opposed to any statutory provision, or demonstrably arbitrary or discriminatory. The court may invalidate laws, acts and Governmental actions that are incompatible with a higher authority, or an executive decision for being unlawful which maintains a check and balance.” Another reliance is placed on Messrs Power Construction Corporation of China’s case10, the relevant portion whereof is reproduced as under: “27. In the instant case, the decision of the IDA to pre- qualification of the Petitioner Company and make a "reasonable request" for deletion of its name from the list of pre-qualified bidders is not the subject-matter of the instant lis, in as much as, the said decision and request by the IDA was not challenged in the Constitutional jurisdiction nor was the IDA impleaded as a party to the proceedings. In the absence of any finding, in this behalf, it is legally impossible to adjudicate upon the reasonableness or otherwise of the "request" by the IDA or to determine whether the Respondent/WAPDA was obliged to accede to such request. The decision of the Respondent/WAPDA not to agitate the matter further with the IDA at the behest of the Petitioner Company is not too difficult to discern. It appears that a pragmatic commercial decision was taken not to jeopardize the funding from the IDA and thereby putting the entire project at risk. Such decision falls within the realm of the Public Policy and the Courts in the exercise of their powers of judicial Review, ordinarily, do not interfere therewith and exercise judicial restrain, as has been Senior General Manager, Pakistan Railways and others Vs. Muhammad Pervaiz (2024

SCMR 581)

Messrs Power Construction Corporation of China Ltd. through Autorised Representative Vs. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others (PLD 2017 SC 83)

held by this Court not only in the case, reported as Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop (Pvt). Ltd. and others (PLD 2014 SC 1) but also in the judgment, reported as Cutting of Trees for Canal Widening Projects, Lahore: In the matter of Suo Motu Case No.25 of 2009 (2011 SCMR 1743). While we may not totally agree with the interpretation of the paragraph 2(a) of the Appendix-I of the Guidelines, as has been done by the learned High Court by way of the impugned judgments but such an exercise is not necessary by this Court, as in our opinion, the Constitutional Petition filed by the Petitioner Company was not maintainable, as it sought to encroach into the domain of the Policy Matters in respect whereof the judicial restrain is to be exercised.” In Dr. Akhtar Hassan Khan’s case11, the Hon'ble Supreme Court of Pakistan has held as under:

“37. Similarly in Tata Cellular v. Union of India ((1994) 6 Supreme Court Cases 651), the Court laid down that the power of judicial review would be available qua the contractual powers of the Government bodies to prevent arbitrariness or favourtism. However, the Government being guardian of finances is expected to protect the financial interest of the State. The Court nevertheless enunciated the principle of judicial restraint by holding that it does not sit as a court of appeal but merely to review the manner in which the decision was taken. This is so because the Court does not have the expertise in the domain of administrative decision making.

38.In Sterling Computers Ltd. v. M & N Publications Ltd. ((1993) 1 Supreme Court Cases 445), the Court outlined parameters of judicial review in terms as follows:-- "While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process’..... By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court has inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process was reasonable rational, not arbitrary and violative of Article 14 of the Constitution.” Another reliance is placed on Azra Jamali’s case12, the relevant portion whereof is reproduced as under :

Dr. Akhtar Hassan Khan and others Vs. Federation of Pakistan and others (2012 SCMR Azra Jamali and others Vs. Federation of Pakistan through Secretary, M/o Commerce and another [2017 PLC (C.S.) 533]

“29. Now judicial review of administrative actions is a well- established norm. It is permissible on the ground of illegality or irrationality or procedural impropriety. But it is also well settled that administrative decisions involving policy considerations have been put on a different pedestal. Though they are not totally immune from judicial review, yet certain grounds, which are available in the case of administrative decisions not involving policy considerations, are not open for challenging the policy decisions. By and large the courts observe restraint in deciding the validity of issues involving policy. Since, Courts do not sit as an appellate authority over the policy considerations, it cannot examine the correctness, suitability and appropriateness of the policies. The executive has the authority to formulate a policy and the courts can interfere with it only if it violates the fundamental rights enshrined in the Constitution or is opposed to the provisions of the Constitution or is opposed to a statutory provision. A court cannot interfere with a policy either on the ground that it is erroneous or that a better and fairer alternative was available. The administrative actions and policies of the Government which relate to the enforcement of fundamental rights of the people and are of public importance, must be framed in consonance with the policy of law and mandate of the Constitution. The consistent view taken by the Superior Courts in Pakistan has been that the Courts would not interfere in the policy making domain of the executive unless the policy was in violation of the Constitution, smacked of arbitrariness, favoritism and a total disregard of the mandate of law.

31.The Superior Courts in Pakistan have generally exercised judicial restraint in interfering with the policy-making domain of the executive authority while exercising the power of judicial review of administrative actions.....” In Wattan Party’s case13, the Hon'ble Supreme Court of Pakistan has held that “57...it is well settled that normally in exercise of the powers of judicial review this Court will not scrutinize the policy decisions or to substitute its own opinion in such matters...”. In Vice-Chancellor Agriculture University’s case14, the Hon'ble Supreme Court of Pakistan has held that “7... It does not befit the courts to design or formulate policy for any institution, they can, however, judicially review a policy if it is in violation of the fundamental rights guaranteed under the Wattan Party through President Vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697) Vice-Chancellor Agriculture University, Peshawar and others Vs. Muhammad Shafiq and others (2024 SCMR 527)

Constitution. The wisdom behind non-interference of courts in policy matters is based on the concept of institutional autonomy which is defined as a “degree of self-governance, necessary for effective decision making by institutions of higher education regarding their academic work, standards, management, and related activities.” Reliance is also placed on Government College University’s case15 in this regard. The Supreme Court of India has also followed this principle in a judgment titled as Anun Dhawan & Ors. Vs. Union of India & Ors. [(2024) 2 S.C.R. 812] and held that “...It is well settled that the scope of judicial review in examining the policy matters is very limited. The Courts do not and cannot examine the correctness, suitability or appropriateness of a policy, nor are the courts advisors to the executive on the matters of policy which the executive is entitled to formulate. The Courts cannot direct the States to implement a particular policy or scheme on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, would be the subject of judicial review.” In Parisons Agrotech’s case16 the Supreme Court of India has held that “....No doubt, the writ court has adequate power of judicial review in respect of such decision. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a Government College University, Lahore through Vice-Chancellor and others Vs. Syeda Fiza Abbas and another (2015 SCMR 445),

Parisons Agrotech (P) Ltd. and Anr. Vs. Union of India & Ors. [(2015) 10 S.C.R.505]

decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review.” Another reliance is placed on Racing Promotions’ case17. To annul any law, policy or rules, it has to be proved that the said law, policy or rules is against the Constitution.

9.Furthermore, it is settled principle that the courts must not act in departure to the settled principles of judicial norms or in aid of administrative policy of executive authority or as social reformer rather must confine itself within the domain of law and mandate of the Constitution.

10.As regard reliance made by the Hon’ble Single Judge in Chamber on Marie Stopes Society’s case18, suffice it to say that the matter of Policy is total distinguishable to the judgment (supra) as Policy in this case was duly approved by the Federal Cabinet whereas this exercise was missing in the Marie Stopes Society’s case.

11.In view of above, it can conveniently be held that interference cannot be made by this Court in the policy matters of the Government in writ jurisdiction.

12.Further, as the Hon’ble Single Judge in Chamber presumed that Article 18 of the Constitution is applicable in this case whereas as per the facts and circumstances of the case, Article 18 is not applicable rather Article 99 of the Constitution is attracted. Article 18 of the Constitution deals with freedom of trade, business or profession but subject to qualifications, if any, to be prescribed by law as such Hon’ble Single Judge was not properly assisted in this regard. In the instant case, the government framed Policy, which was duly approved by the Cabinet as per the mandate of the Constitution as well as Rules of Racing Promotions Private Limited Vs. Dr. Harish & Ors. [(2025) 2 S.C.R. 1608] See footnote 2

Business, 1973, for local NGOs/NPOs receiving foreign contributions.

13.Resultantly, all these Intra Court Appeals are allowed, the judgment dated 06.09.2024 passed by the Hon’ble Single Judge in Chamber is set aside and consequently, the Writ Petitions No.15453/2024, No.29024/2024 and No.34713/2024 are dismissed.

(Syed Ahsan Raza Kazmi) (Ch. Muhammad Iqbal) Judge Judge

Announced in open Court on 13.04.2026.

Approved for reporting.

Judge Judge Abdul Hafeez