Important Decisions Of The Supreme Court Of Pakistan During 2016

14th July Supreme Court final

Important Decisions Of The Supreme Court Of Pakistan During 2016

It is a healthy tradition prevailing in some jurisdictions to analyze the contribution made by their judicial organs in a particular year. Such tradition has not been evolved in Pakistan for reasons unknown. The following review of some important cases of the Supreme Court delivered in 2016 is meant to draw the attention of members the legal fraternity towards this aspect along with encouraging them to come up with their analytical summaries of important cases. While selecting the cases for analytical review, an effort has been made to accomplish the task with impartiality. But considering the nature of the present assignment, absolute impartiality is difficult to maintain as the inclinations and subjectivities of the commentator are bound to creep in wherever they find space.

The cases presented in this analysis are those which have impacted the legal and judicial landscape of Pakistan in multiple ways by either developing a new legal perspective or construction or putting the established rule or construction in jeopardy. These decisions will remain relevant for the future as well, particularly in the field in which they have been made. And unless the judicial dictum made by them is reversed by a larger bench of the Supreme Court or by a legislative instrument, these decisions are bound to maintain their significance.

Before leaving the readers to go through the case summaries, one clarification is necessary: while selecting cases, the year of their publication has been considered a relevant factor and not the actual year in which a specific case was decided. For instance, the first case was decided in the last quarter of 2015, but published in early 2016, hence included in the list of 2016. Whereas, the case about the legality and propriety of the procedure and punishments of military courts, though decided in 2016, was not published in that year and has not been selected for this analysis.

1. Malik Muhammad Mumtaz Qadri vs State (PLD 2016 SC 17)

The appellant was the murderer of the slain Governor of Punjab, Salman Taseer. He filed an appeal before the Supreme Court on receiving the death penalty imposed by the Islamabad High Court, to be set aside in exchange for a reduction of his punishment. The appellant was a police guard appointed to guard and defend the deceased whom he killed during his official duty. The appellant argued that the alleged statements made by the deceased Governor about the law of blasphemy provoked him and were the main causes of him resorting to violence. It was asserted that his offence was attributable to the provocation caused by the deceased and owing to such circumstances he should not be held to undergo capital punishment.

The court could not find itself agreeable with the contentions made by the appellant and held that no one should be allowed to take the law into one’s hands. And if there was anything offensive uttered by the deceased about the law of blasphemy that should have been prosecuted through the procedure set by law and not by the appellant himself. The court held that, “Even if due to mistake of fact the accused entertained an impression that the deceased had committed an act of blasphemy still there was no valid basis available with the accused to believe that his act of killing the deceased was justified by the law of the land.” Considering the religious background of the accused and his official duty as a police guard, the court observed that, “Grooming of the accused in religious traditions would also have taught him to distinguish between the requirements of his job for which he was paid from the public exchequer and acting on the basis of his personal sentiments.” Consequently, the court maintained the decision of the Islamabad High Court as to the imposition of death penalty on the appellant.

It is pertinent to state that the accused, in the aftermath of the above decision of the Supreme Court, filed a review petition which is reported as Malik Muhammad Mumtaz Qadri vs State (PLD 2016 SC 146). It was argued by the accused that a larger or full bench of the court should be constituted for deciding certain important religious and legal issues involved in the case. The request was turned down by the court observing that it was the prerogative of the court to constitute a larger or full bench in appropriate cases. Moreover, the review petition was dismissed on merit as it was devoid of any new legal question warranting interference by the court.

This decision has far-reaching consequences for the obnoxious tradition of taking the law into one’s own hands and transposing oneself as complainant, prosecutor, judge and executioner simultaneously. Moreover, the decision has exposed the divisions amongst various sections of the society as to the legality of causing death in an alleged incident of blasphemy without resorting to the proper course of law and the propriety of any sentence imposed consequent to such an unfortunate incident. Anyhow, the apex court demonstrated a strong resolve on behalf of the judiciary for not bowing before extremist forces which intend to mock the law and put upon it a construction that would foster their own desire and agenda. The decision will pave way for cultivation of the practice of following the law and maintaining the rule of law at all costs even if someone does not find its provisions inconsistent with his or her own liking.

2. Government of Punjab vs Aamir Zahoor-Ul-Haq (PLD 2016 SC 421)

The case in hand deals with the legality of hunting regime provided under wildlife laws for the Houbara Bustard bird on one hand, and the international obligation to protect those species which are threatened with extinction, on the other. This case also exposes the tensions between the legal regime and intricate foreign affairs of Pakistan. Brief facts of the case: a bird species named Houbara Bustard migrates from the cold and icy lands of the north to Pakistan during the winter season. Foreign nationals, particularly those hailing from Middle Eastern Arab countries, love to hunt the Houbara Bustard and they visit Pakistan during the season for hunting them after getting the requisite licence from the Ministry of Foreign Affairs. Some spirited individuals initiated legal proceedings before the High Courts of Sindh and Balochistan against the issuance of such licences which were then held to be against the law and cancelled. Ultimately the matter reached the Supreme Court of Pakistan (reported as Province of Sindh vs Lal Khan Chandio 2016 SCMR 48).

The apex court maintained the decisions of the High Courts by holding that no government – federal or provincial – could issue licences for the hunting of Houbara Bustard because the species was threatened with extinction. While reaching this conclusion, the court drew arguments from international conventions and observed that Pakistan was under a duty to fulfill its treaty obligations for the preservation of endangered species. Consequently, a perpetual ban was imposed by the Supreme Court on the government to exercise the discretion for granting and withholding the licences for hunting of Houbara Bustard under wildlife laws. The decision of the Supreme Court was made by three honorable judges namely Jawwad S. Khawaja CJ, Dost Muhammad Khan and Qazi Faez Isa. The judgment was written by the last mentioned judge.

The above decision of the Supreme Court was not palatable to the government as it might have adversely influenced the friendly foreign relations of the country with some Middle Eastern countries. So, the government decided to file a review petition before the apex court. As a matter of law and judicial tradition, a review petition is heard and decided by the same bench whose decision is under review. In this case, when the review petition was filed, one of the judges of the original bench had retired from the court, hence could not be made part of the bench. The Chief Justice constituted the bench of five judges including only one from the original bench i.e. the judge who authored the original judgment. The other four judges never heard the original lis, but were still made part of the bench constituted to hear the review petition. Interestingly enough, all of these four judges pronounced the majority decision and the sole judge of the original bench wrote a dissenting note.

The majority decision set aside the judgment under review and held that there was no sufficient material to conclude before the original bench that the number of Houbara Bustards was decreasing with the passage of time. As per the record presented by the Wildlife Department, approximately the same number of birds had been coming to Pakistan during winter season for years, hence, the regulated hunting under the wildlife legal regime did not have any adverse effect on the numbers of Houbara Bustard. The majority judges concluded that there was an apparent error in the original judgment and they had jurisdiction to entertain the review petition. While setting the original judgment aside, the majority judges observed that the civil and constitutional petitions in this matter would be fixed for fresh hearing. The judgment of the majority was written by Justice Saqib Nisar.

In his minority judgment, Justice Faez Isa criticized the majority judgment by arguing that in addition to violating relevant rules, it had destabilized the settled judicial tradition of the hearing of review petitions by the same benches that had delivered the judgments under review. He pointed out that constituting a larger bench for the hearing of the present review petition was basically laying foundation of a judicial innovation not appreciable from any perspective. He observed that such a judicial course would snatch away “the legal certitude and authoritativeness expected from the decisions of the Supreme Court.” In addition to criticizing the procedural aspect of constituting the larger bench manned by different judges, he upheld the original judgment on merit observing that there was no legal and factual justification for making any amendment to the original judgment.

The majority judgment might have been accurate from the legal perspective or at least from the perspective of our friendly foreign relations with some Arab countries, but the judicial course adopted to conclude it is questionable under various counts. And the dissenting judgment has appropriately highlighted the pitfalls into which such course is destined to lead the apex court, if not preempted and stopped. The most glaring casualty of the majority judgment is putting the uniformity and certainty of the review procedure at stake which is considered to be the hallmark of any judicial-cum-legal system.

3. Pakistan Broadcasters Association vs Pakistan Media Regulatory Authority (PLD 2016 SC 692)

This is another important case decided by the Supreme Court of Pakistan in 2016. It deals with the contours of the fundamental right of free speech and reasonableness of restrictions put upon it. The case was triggered by the rules framed by the Pakistan Electronic Media Regulatory Authority (PEMRA) as to the maximum duration of commercial advertisements and minimum duration between such advertisements of other non-commercial contents. The said rules have mandated that during prime-time, that is between 7 pm to 10 pm, no licencee would telecast commercial contents of more than 2 minutes, to 10 minutes of non-commercial contents. It has also been said in the rules that a non-commercial program should at least be telecast for fifteen minutes before the airing of a commercial break.

The broadcasters and television enterprises did not agree to such extensive and meticulous regulation of their programs by PEMRA and the matter was brought before the Supreme Court after being dismissed by Sindh High Court. It was argued on behalf of the broadcasters that the impugned rules were usurping their managerial powers over their own business enterprises. Such an extensive regulatory regime violated their fundamental right of free speech and expression as this right provided them ample space to decide what, when and how to telecast. It was further argued that the viewers were not their consumers, hence, they did not owe any responsibility – contractual or otherwise – to telecast and schedule their programs to please and entertain them. The televisions were private and commercial enterprises established to do business, and the sustainability of their businesses could not be achieved without telecasting commercial advertisements.

On the other hand, PEMRA was of the opinion that it had not violated any of the fundamental rights of the broadcasters by framing such rules, rather it had promoted public interest by enhancing the quality of viewers’ experience through regularizing the telecast of the commercial contents. It was further submitted that there was a distinction between commercial and non-commercial contents and the freedom of speech had more to do with the latter as compared to the former. The regulator may not intervene in the telecast of non-commercial contents because of the constitutionally guaranteed fundamental right of free speech, but whereas the regularization of the commercial contents was concerned, such stringent interpretation could not be put onto such basic right. It was further argued that the courts worldwide had been employing extensive regulatory regimes for commercial contents as excessive airing of such contents was bound to interfere in the quality of viewers’ experience who had paid a lot for the purpose of watching television programs in terms of purchasing televisions and paying cable operators and electricity bills. Hence, the broadcasters could not assert that they did not owe any responsibility to the viewers.

The court after hearing the arguments came to the conclusion that the impugned rules were legal and could not be struck down as violating the broadcasters’ right to free speech. In the course of her judgment, the apex court made an interesting distinction between commercial advertisements published in newspapers and those telecast on televisions. Unlike in newspapers, the broadcasters had been utilizing airwaves for broadcasting their programs and these airwaves were part of public property. Therefore, they owed a responsibility to utilize the airwaves for the maximum benefit of viewers and not for aggrandizement of their businesses. Moreover, newspaper readers had an opportunity to switch to another page which would have relatively less commercial contents, whereas the same sort of luxury was not available to television viewers as the majority of the broadcasters had been airing commercial contents simultaneously, depriving the viewers the autonomy to avoid such contents by any means except to switch their television sets off.

Though the decision made in this case appears to be specific to its context, in reality it has an overreaching importance as to the role of a regulator in protection of the rights of service consumers. A regulator could legitimately paddle its regulatory regime into managerial aspects of licencees, provided it is meant to protect public interest and bound to work as a shield against unwarranted capitalistic greed.

4. Messers Mustafa Impex, Karachi vs Government of Pakistan (PLD 2016 SC 808)

This is another important case having in-depth implications for cultivating the true spirit of a democratic system in Pakistan. In this decision, certain important questions are addressed, such as: what is meant by federal government under the Constitution; who would exercise the authority of federal government; can the Prime Minister circumvent the Cabinet in matters relating to financial expenditure of the federal government and allocate it under discretionary powers; and the effect of any sub-constitutional legislation if it has different connotations than what is meant by the federal government under the Constitution.

After interpreting the Constitutional provisions particularly Art. 90, the apex court declared that the federal government included the Prime Minister and his or her Cabinet. The Prime Minister being the most important person in the Cabinet still cannot exclusively and solely represent the federal government, and whenever any law requires that a decision be made by the federal government, then it should be the decision of the Cabinet inclusive of the Prime Minister. The court observed that the Constitution vests the management of financial matters in the federal government and hence, in such matters, the prime minister could not allocate and approve a financial scheme without the approval of his cabinet nor could he seek retrospective approval of what he had already allocated.

The court further observed that if any law does have a different connotation regarding the federal government other than the manner construed by the court in the present case, then the interpretation put forth by the court would prevail over such non-conformist definition. It also held that even if any power is delegated to an official regarding the management of financial affairs, he or she could not exercise it on his or her own and must prepare and forward the matter to the Cabinet to decide upon. The court said that the way it had construed the contours of federal government was distinct from the doctrine of supremacy of parliamentary form of government and principles of separation of powers. Having developed such a line of argument, the court declared the financial notifications (impugned in the case) issued by the Secretary of Finance Division for enhancing tax levy as ultra vires to the Constitution and struck them down.

Prior to this decision, the authority of the federal government used to be exercised by various secretaries, sometimes under the direction of their respective ministers and sometimes even without such supervision. At other times, the Prime Minister had been treated as the sole repository of federal government and free to make important decisions even without taking the Cabinet into confidence. Such undemocratic traditions would die down because of this landmark decision that also made the government convene cabinet meetings at regular intervals (which had not been so frequently convened earlier) as well as imposed constitutional duty on the Prime Minister to run the affairs of government in consultation with the Cabinet (at least in the domain of financial matters).

5. Muhammad Akram Vs Registrar, Islamabad High Court (PLD 2016 SC 961)

It is often argued that the judiciary is a sacred cow that attempts to put everything on the right track through its decisions and suo motu proceedings, considering itself above any accountability and not taking into account the corruption prevalent in its own ranks and cadres. This decision is an antithesis to such perception. Brief facts of the case: when Islamabad High Court was established, some appointments were made therein violating or bypassing the settled procedure of law, and the judges who were then steering the court were allegedly involved in this process. Most of such appointees were those persons who were initially transferred to the court on deputation from other departments and judicial organs, but later absorbed in the Islamabad High Court and awarded higher grades without publication of any advertisement in the media or through a transparent selection process.

The case was directly initiated in the Supreme Court which treated it as a case of public importance and commenced regular hearing. The court identified as many as 54 instances of irregular and illegal appointments and promotions in the Islamabad High Court. The court noted that some appointments were made after relaxing the relevant service rules. In this context it held that, “Absolute power to relax a certain service rule had not been conferred on the Chief Justice of the High Court and such power was limited only to be exercised where it did not encroach upon the statutory rights of other persons or employees.” By a colorful relaxation of the relevant rules, the Supreme Court observed that, “A number of meritorious and eligible candidates had been deprived of their fundamental right to seek employment through a competitive examination as provided under Art. 18 of the Constitution.”

The apex court also made a distinction between judicial and administrative powers exercised by a judge and held that no writ under Art. 199(5) could be filed against the exercise of the former by any citizen, whereas the powers of administrative nature exercised under Art. 208 were open to scrutiny. The court ordered that no vacancy could be filled in any public body or organization without following the settled process of advertisements in public dailies and after constituting an independent board for selection from amongst those who are declared to be eligible candidates against the advertised posts. In-house absorptions, appointments and promotions without following the law and codal formalities do not have any place in the service jurisprudence of Pakistani legal system.

It is the after-effect of this important decision that a judge of the Supreme Court, who served as Chief Justice of the Islamabad High Court during the fateful episode of irregular and illegal appointments, had to resign. Moreover, all those who were the beneficiaries of such an unwarranted process had been repatriated to their parent departments. The precedent set by the Supreme Court in this case has also been followed by some other departments that have sent their deputed and subsequently absorbed and promoted officials back to their parent organizations. This decision will have a healthy impact in bringing transparency to the process of appointments and promotions in public bodies and organizations and such bodies would think twice before violating the settled procedure of law and codal formalities.

 

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.

Dr Shahbaz Ahmad Cheema

The writer holds a PhD in Law from Warwick University, UK and is presently working as Assistant Professor at the University of the Punjab, Lahore.



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2 Comments

  1. M. Asghar Shaheen said:

    Nice Article. That’s how Constitutional law is expounded by superior judiciary which British legal system is termed as Common Law. As described by the author at the outset that in most jurisdictions such year end review is a good tradition that helps in evolution of the Constitutional law and to educate the students of the profession. Hope the other legal analysts will also contribute their critical review of Apex Court’s landmark judgments.

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