Judicial Accountability Begins At Home
Ch. Muhammad Akram v Registrar Islamabad High Court (IHC)
The Honorable Supreme Court of Pakistan, in a recent judgment titled Ch. Muhammad Akram v Registrar Islamabad High Court, has nullified all those appointments made in the Islamabad High Court which were made in violation of rules and constitutional provisions. By doing so, the Supreme Court, in a well-reasoned judgment, has once again conveyed a very strong and loud message to the other institutions that for ensuring the fundamental rights of citizens, it will go to the extent of exposing malpractices even within its own institution being the final arbiter. This action of the Supreme Court has, no doubt, raised confidence of the common people in the judiciary, which otherwise keeps fluctuating time and again.
This case started over the eye-opening revelation by an officer of the Accountant General of Pakistan in the Audit Report for the period 2010 to 2013, wherein it was revealed that no appointment was made on merits in Islamabad High Court[1]. Mr. Saad Rasool, while concluding his article said, and rightly so, that this issue should be taken to its logical ends. The relevant para is reproduced here:
“The move towards transparent exercise of administrative authority, even by judicial officers, is a welcomed development. However, the process must be completed to its logical conclusion. And for that, the honorable Court still has some very tough choices to make.”[2]
This landmark judgment has paved way for ensuring the rule of law and ultimately achieving good governance[3] in the country. The maintainability issue was raised by the respondent to limit the jurisdiction of the Supreme Court under Article 184 (3), but in a fascinating style the Supreme Court brushed aside that contention and quoted from various authorities to support jurisdiction for ensuring justice and stopping the violation of constitutional provisions. Citing the famous constitutional case of Benazir Bhutto v Federation of Pakistan, the Supreme Court justified assuming jurisdiction for judicial review of the executive action. The relevant para is reproduced as under:
“After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action, seeks to achieve as it goes further to relax the rule on locus standi so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, “(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.”[4]
The Honorable Supreme Court after citing the above extract from the judgment, categorically said that in the case at hand a question of public interest litigation was involved and in the garb of constitutional provisions the enforcement of fundamental rights and correcting the illegality, committed by whoever, could not be overlooked.[5]
Through this judgment, the role of a judge of the superior judiciary has also been separated, as to when it is judicial and when it becomes administrative/consultative/executive. The jurisdiction to review under Article 184 (3) and Article 199 has been excluded while performing a purely judicial function but the Supreme Court has jurisdiction when a judge performs an executive function under the rules. To clarify this issue, the Honorable Supreme Court discussed Articles 192 and 208 among others. Article 208 empowers the High Court and Supreme Court to formulate Rules for their functioning, whereas Article 192 defines the High Court as under:
“192. Constitution of High Court.
(1) A High Court shall consist of a Chief Justice and so many other judges as may be determined by law or, until so determined, as may be fixed by the President.”
The ratio decided in the Asif Saeed Case was misconstrued with regard to Article 192 and Article 199 and language of the two Articles were mixed up to create confusion, leading to the denial of remedy[6]. This judgment[7] has not only produced good jurisprudence but has also removed some of the confusion generated by earlier authorities[8]. The Honorable Supreme Court’s relevant paragraph is reproduced here:
“45. We for the aforesaid reasons conclude that the provisions of Article 199(5) would bar a writ against a High Court if the issue is relatable to judicial order or judgment; whereas a writ may lie against an administrative /consultative/executive order passed by the Chief Justice or the Administration Committee, involving any violation of the Rules framed under Article 208, causing infringement of the fundamental rights of a citizen.”
The Supreme Court while mentioning Rule 26 of High Court Rules has defined the key words “just and equitable” and in doing so it has quoted the definition of these words, among others, in Paras No. 48-50. The term “undue” in High Court Rules has also been defined to explain that the High Court committed a mistake while exercising its executive role:
“Conforming to, or consonant with, what is legal or lawful; conformable to laws; conformable to rectitude and justice; conformed to rules or principles of justice; conforming to the requirements of right or of positive law; correct; right; legally right; rightful; right in law or ethics; due; lawful; legitimate; equitable; fair; honest; true; impartial in accordance with law and justice; not doing wrong to any; not transgressing the requirements of truth and propriety.”[9]
The term “just” may apply to law as well as ethics. In certain cases it denotes that which is right and fair according to positive law. The word “just” means a right and more technically a legal right – a law. Thus jus dicere was to pronounce the judgment; to give the legal decision[10].
The term “equitable” is defined as meaning according to natural right or natural justice; marked by the due consideration for what is fair, unbiased, or impartial[11].
“Undue” means not appropriate or suitable, improper, unreasonable, unjustifiable, illegal, going beyond what is appropriate, warranted or natural[12].
The Supreme Court realized that in the guise of Rules no one could be allowed to abuse their authority at the cost of infringement of other rights. The misconduct of lower judiciary was corrected by the respective High Courts[13]. If the lower judiciary can be punished for misconduct then the superior judiciary should also be made accountable for misuse and abuse of administrative powers, so that the confidence of people is not shaken. In this regard, a constitutional provision is available to tackle such a matter in a decent way under Article 209 through the Supreme Judicial Council and in this regard, the lawyers’ leadership at Islamabad High Court (IHC) filed a reference against IHC Chief Justice[14]. The enormity of the misuse of the power can be gauged by the following concluding paragraph of the Supreme Court’s judgement:
“85. Before parting with the judgment, we may observe that the Chief Justice Islamabad High Court and/or the Administration Committee of Islamabad High Court have made appointments in the Establishment in complete disregard of the mandate given by the Rules framed under Article 208 of the Constitution. If the competent authority itself starts cherry picking by deliberately ignoring and overlooking meritorious candidates in appointment exercising powers under Rule 26 of the Lahore High Court or Rule 16 of the Islamabad High Court, then the image of the institution will be tainted beyond repair. Such practice may lead to distrust of the public in the judicial institution of the country. We could not allow denial of justice to those candidates who merit appointment nor could we encourage anyone to bypass transparent process of recruitment provided under the Rules. We have already cited certain instances showing the mode and manner in which the appointments were made by abusing the authority.”
It was necessary for the Honorable Supreme Court to take this bold step as there are numerous cases heard by the superior court against malpractices of the executive in appointments, contractual policies, promotions and seniority matters, etc. and it is also the final court to protect the fundamental rights of people and stop the abuse and misuse of actions of the executive authorities. Restoring the confidence of the people in the apex court has become far more necessary and thus the Honorable Supreme Court has paved way for the rule of law and good governance. When judges of the superior courts would keep such checks on the misuse of administrative powers, the lower judiciary would automatically correct itself. Therefore, for concrete reform within the judiciary, particularly with regards to the lower judiciary which is the backbone of the justice system, the responsibility on the Supreme Court increases manifold as it is the only and final choice.
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Cases presented by the parties:
- Abdul Jabbar Memon 1996 SCMR 1349
- Mushtaq A. Mohal v LHC, 1997 SCMR 1043
- Muhammad Naseem Hijazi v Govt. of Punjab, 2000 SCMR 1720
- Naveeda v Govt of Punjab, 2003 SCMR 291
- Chief Secretary v Abdul Raoof, 2006 SCMR 1876
- Muhammad Ali v KPK, 2012 673
- Registrar Balochistan High Court v Abdul Majeed, PLD 2013 Bal 26
- Syed Mubashar Raza Jaffri v EOIB, 2014 SCMR 949
- Contempt of Court against Chief Secretary v Province of Sindh, 2013 SCMR 1752
- Ali Azhar Khan Baloch v Province of Sindh 2015 SCMR 456
- Asif Saeed v Registrar LHC, PLD 1999 Lah 350
- Muhammad Iqbal v Registrar LHC, 2010 SCMR 632
- Jamal Shah v The Member, Election Commission of Pakistan, PLD 1966 SC 1
- Sindh High Bar Association v Federation of Pakistan, PLD 2009 SC 879
- Wukla Mahaz Tahufuz Dastoor v Federation of Pakistan, PLD 1998 SC 1263
- Federation of Pakistan v Ghulam Mustafa Khar, PLD 1989 SC 26.
- Muhammad Yousaf v Malik Karam Dad Khan and Other, PLD 1968 Lah 30.
- Mian Muhammad Shahbaz Sharif v Federation of Pakistan, PLD 2004 SC 583
- Muhammad Tahir ul Qadri v Federation of Pakistan, PLD 2013 SC 413.
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References:
[1] Saad Rasool, Islamabad High Court Appointment, The Nation 2 October 2016 available at http://nation.com.pk/columns/02-Oct-2016/islamabad-high-court-appointments
[2] Ibid.
[3] Good governance as defined by UNO/World Bank has eight characters which includes as “Rule of Law, Transparency, Accountability and Participation, Responsiveness, Consensus Oriented, Equity and Inclusiveness, Effectiveness & Efficiency” available at http://www.unescap.org/sites/default/files/good-governance.pdf
[4] PLD 1988 SC 416.
[5] Ch Muhammad Akram v Registrar IHC, Para No.40.Page 27.
[6] Ch Muhammad Akram v Registrar IHC, Para 43.
[7] Ibid.
[8] Asif Saeed v Registrar Lahore High Court, PLD 1999 Lah. 350.
[9] Corpus Juris Secundum, Volume L.
[10] Words and Phrases, Permanent Edition, Volume 23A.
[11] Words and Phrases, Permanent Edition Volume 15.
[12] Words and Phrases, Permanent Edition, Volume 43.
[13] Civil Judges dismissed for corruption, The News, Saturday, October 15, 2016.
[14] Lawyers Leader files reference against Islamabad High Court, The News Saturday, October 15, 2016, available https://www.thenews.com.pk/print/157376-Lawyers-leader-files-reference-against-IHC-CJ
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