The Curious Case Of Maryam Nawaz: LHC’s Verdict: ‘Discretion Is The Better Part of Valor’
In November 2014 the honourable Lahore High court gave a judgment in which directions were issued to the chairperson Youth Loan Scheme Maryam Nawaz to leave the honorary post. Recently this judgment has been approved for reporting which will be published soon in one of the law journals.
A public interest petition was filed in the Lahore High Court by a social activist Mr Muhammad Zubair Khan Niazi in which I appeared as a counsel and argued at length by relying on the dictum laid down in the superior court’s judgment, PLD 2013 SC 195, famously known as ‘The Anita Turab case’, in which it was decided by the Honourable Supreme Court of Pakistan that every appointment to a public office would be made on the basis of the principles of fairness, transparency and merit.
During the course of arguments an issue emerged that whether an honorary post would fall within the ambit of public office. The Honourable Lahore High court relied on another Supreme Court’s judgment, Mirza Muhammd Tufail versus District Returning Officer and others (PLD 2007 SC 16), that remuneration is not the decisive factor to determine whether the post is a public office or not. It is the exercise of powers, mainly the appointing and dismissal authority if being exercised by the person and its control over the affairs of statutory body, which will determine the status of a person to hold the public office.
The court when perused the notification of appointment of Maryam Nawaz as Chairperson Youth Loan Scheme took cognizance of the fact that she was not only managing the affairs but also controlling the entire institution. Therefore the Court reached the conclusion that the post of chairperson Youth loan Scheme is a public office, since she was controlling and managing the affairs of Youth Loan Scheme. Henceforth, the appointment should have taken place in a transparent and fair manner by keeping into consideration the education qualifications and experience of a person before he or she gets appointed.The court inquired about the qualifications of the lady and, in response, appearing on behalf of Federation of Pakistan the learned, Additional Attorney General, took a stance that Miss Maryam Nawaz had done masters in English Literature and completed her PhD in political science.
The learned Additional Attorney general accompanied by the standing counsel produced documents from Wikipedia website to prove the credentials of Maryam Nawaz. Now this was a turning point. At this juncture,the court was shocked to observe, from the website’s document, that how it is possible that a person, who has done masters in English literature, completed her PhD thesis in political science as this certainly does not appeal to a prudent mind.
The court in utter dismay, directed the learned Additional Attorney general to produce the degree transcripts of Maryam Nawaz on the next date of hearing.When the learned Additional Attorney failed to produce the same on the subsequent hearing, the court concluded that the lady does not have the requisite qualification and hence she would be required to leave the office.
Appearing on behalf of the petitioner, I further elaborated that although appointments to the public office is a prerogative of executive, but the discretionary powers cannot be exercised in a whimsical and arbitrary manner as mentioned in the landmark judgment of Tariq Aziz ud Din versus Federation of Pakistan reported as 2010 SCMR 1301.
The appointment of Maryam Nawaz as chairperson Youth Loan Scheme was challenged under Article 199 of Constitution of Pakistan in a writ of quo warranto, where the proof of locus standi is not required as decided in the case of Sardar Muhammad versus Federation of Pakistan and others PLD 2013 Lahore 343. The scope of judicial review in a writ of quo warranto has increased over a period of time and played a pivotal role to keep checks and balance on the discretionary powers of the executive regarding appointments in public office. During the proceedings, it was submitted by the Youth Loan Scheme officials appearing on behalf of the government that the entire scheme comprises of 10 billion rupees which has been allocated out of taxpayers’ money.
The court observed that the proprietary demands under such circumstances that she must leave the office because appointment to such public office cannot take place on the basis that she is the daughter of prime minister. The court held that a public office holder holds public trust and owes fiduciary duties towards the public, and in this case it does not mean in any way that, the appointee, by virtue of being the daughter of Prime Minister, holds the public-trust and therefore starts controlling the taxpayer’s money (youth loan fund), which is against the rule of law.
This case is a reminder to the government that the state affairs have to be managed in a transparent manner with open-ended policies keeping into consideration the democratic norms and good governance principles. It is well said that governments are of the people, for the people and by the people but the way impugned appointment of Maryam Nawaz as chairperson Youth Loan Scheme was made,gave an impression to the public at large, that government is of the family, for the family and by the family. Ultimately, with the intervention of the court’s exercise of judicial review powers and acceptance of the writ petition in public interest, the principle which prevails in the end is: ‘Discretion is the better part of valor.’
The writer appeared as counsel on behalf of the petitioner and the judgment has been recently approved for reporting.
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