An Erroneous Judgment

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An Erroneous Judgment

I take this opportunity to write my academic point of view on the judgment dated 23.05.2016 in a writ of quo warranto titled Dr. Inam Ullah Khan v Dr. Yousaf Ahmad Darwaish, which is not only erroneous but also vitiates the concept of illegality. The main purpose of this writing is to rectify a judicial error, which is obviously erroneous to the extent that the judgment was not approved for reporting as it goes against the settled principles of law and justice. It is worth mentioning that the higher judiciary of Pakistan still believes in the theory of necessity. The theory of necessity is the concept that provides legal healing to the illegitimate act of the government. It is also to be noted that internal accountability is only a showcase that is used to help each other in the time of need. This judgment also supports the narrative that the rule of law is different for an ordinary respondent than that for a high profile respondent.

The background of the court order dated 23.05.2016 is that a writ of quo warranto no. 2910/2014 (CPLA No. 742/2016) was filed under Article 199 of the Constitution of the Islamic Republic of Pakistan in Islamabad High Court against the illegal appointment of Dr. Darwaish as President of the International Islamic University Islamabad. The respondent was appointed by the  former President of Pakistan Mr. Asif Ali Zardari in violation of section 13 (1) of the International Islamic University Islamabad Ordinance 1985. This appointment was made on October 12, 2012 for an unknown period as the order does not specify any period. It may be noted that section 13(1) of the International Islamic University Islamabad (IIUI) Ordinance 1985 restricts the appointment of the President to a term of four (4) years. Section 13(1) is reproduced below:

“That the President shall be appointed by the Board of Trustees, out of a panel to be recommended by the Rector, on such terms and conditions as the Board of Trustees may determine and shall hold office during the pleasure of the Board of Trustees for a term not exceeding four years.”

The relevant section 17(6) of the IIUI 1985 with regard to the powers of the Board of Studies is reproduced below:

“Subject to the provisions of this Ordinance, the Board of Trustees shall be the supreme authority of the University in all its matters and its decisions shall be final and binding.”

The above section makes it clear that the Board of Trustees is created under the terms of the International Islamic University Islamabad Ordinance 1985 and is subject to its provisions. It is interesting to note that when this writ was filed, the University administration rushed to call a meeting of the Board of Trustees in Saudi Arabia and appointed Dr. Darwaish for a fresh term of four years from 1st July 2014 and even ratified his previous appointment which was itself illegal. In this way, an illegal appointment was ratified and went even beyond the scope of section 13(1) of the IIUI Ordinance. This Ordinance is a statute and the Board of Trustees cannot amend it. Therefore, any appointment under section 13(1) will strictly be for a term of four years. There is no doubt that the court order dated 23 .5.2016 is subject to gross irregularity as it has made redundant the International Islamic University Ordinance 1985. It may be noted that the instant case falls under the category of public interest litigation as well as it involves the violation of the fundamental rights such as Articles 4 and 25 of the Constitution of Pakistan.

There are several legal issues involved in this writ which were not addressed as the learned judges would have not been able to justify Dr. Darwaish’s appointment. There is no doubt that the writ of quo warranto is of utmost importance as this is an instance of checks and balances provided by the Constitution of the Islamic Republic of Pakistan. However, the learned judges could not protect these important provisions of the Constitution of Pakistan and thus, violated their oath to the Constitution. Therefore, such instances of irregularities and political appointments need to be checked with utmost care and diligence. The non-observance of such appointments is not only against the norms of justice and healthy competitive process but ends up in the encouragement of such type of irregularities. This is also the violation of Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan as the applicants who applied for the position of President of the International Islamic University Islamabad in 2012 were deprived and discriminated by the appointment of Dr. Darwaish.

Reliance was made on Constitution Petition No.6 of 2011 against illegal appointments and corruption in Employees Old Age Benefits Institution (EOBI) in Syed Mubashir Raza Jafri and Others (petitioners) v. Employees Old Age Benefits (EOBI) Through President of Board, Board of Trustees and others- Respondents. It was decided that illegal appointments fall within the category of public interest litigation as well as within the violation of the fundamental rights of the citizens at large by the public body (EOBI) in the matter of selection and appointment. The constitution petition was held to be admissible (2014 SCMR 949).

Furthermore, in a recent judgment in Constitution Petition No.03 of 2014 and C.M.A.No.8540 of 2015, the Supreme Court of Pakistan declared the appointments made in Islamabad High Court in 2010 as illegal. In both these cases, appointments were made by the appointing authority but in violation of relevant rules and were thus declared illegal. However, the respondents in these two cases were ordinary Pakistani citizens and they were made subject to the rule of law, whereas Dr. Darwaish is a Saudi national probably favoured by Saudi authorities and thus protection was provided by the Saudi Embassy Islamabad along with the government of Pakistan. When this writ was instituted, the writer was approached by the Saudi Embassy through a friend to withdraw it. However, that attempt did not work, thus they approached the government to protect Dr. Darwaish. The appointment was apparently political and thus the judgment as well.

This judgment was made in complete violation of the relevant statute as mentioned above. Even the writer filed a review against the order dated 23.05.2016, which was admitted by one of the sitting judges but then a senior judge of the bench jumped in the middle of the proceedings and started dictating an order on how no new ground was offered and therefore dismissed the review. This is the state of affairs of our higher courts. Let the legal fraternity look into this situation regarding the fate of this august and dignified institution.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

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Dr Inam Ullah Khan

The writer is a consultant on Islamic Finance and a former magistrate. He holds a PhD in Law with specialization in Islamic Law of Banking.



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