Unfettered Powers Of The Courts

Unfettered Powers Of The Courts
In the case of Habibullah Ltd vs Wapda 2014 PLD SC 47, the Supreme Court inked one of the guiding principles of the modern society concisely and clearly, stating that no institution is above the law. The apex court ruled, “The Courts not only are vested with the jurisdiction to set aside such actions but any failure in such an eventuality to exercise power of judicial review, when invoked, would make the court a party to such unfair, mala fide and illegal action.”

This standing principle of civilized societies that all public functionaries must exercise their authority, especially concerning public interest and property, in a fair and just manner under the ambit of absolute transparency and without any form of malafide or discrimination, is the backbone of a society where absolute Rule of Law exists. 

Pakistan has always struggled with the concept of self-accountability and none more so than the Courts themselves especially when it concerned with jurisdiction of judicial review against their own orders. Article 199 and Article 184(3) of the Constitution of Pakistan 1973 provide the High Court and the Supreme Court with original jurisdiction to keep a check on all excesses committed by public functionaries and while the Courts have repeatedly used this power to keep others in check, they have struggled with extending the same on their own. 

The courts have repeatedly adjudged that Article 199(5) does not include the Courts and their judicial orders cannot be brought to Writ. However, on the question of administrative/ consultative/ executive orders, the courts have varied in thought. 

For over some time the Courts had declared themselves completely free from any ambit of judicial review. This was held in Muhammad Iqbal Vs Lahore High Court 2010 SCMR 632 

“We are of the firm view that article 199(5) of the constitution protects all orders passed by the high court, including the administrative one. The consistent view taken in this behalf by the Lahore High Court is perfectly valid and that Peshawar High Court, as reported in kaleem Arshad Khan’s case 2004 PLC (CS) 1558 is not in accord with the true spirit of sub-article (5). The same is overruled.” 

Till that time the Lahore High Court had consistently held in various cases such as 1991 MLD 2546 and again in PLD 1999 Lah 350 that orders passed by a High Court, whether judicial or administrative, are protected under Article 199(5). 

Earlier, Supreme Court in Mian Jamal Shah versus The Election Commission 1966 PLD SC 1 held that a constitutional petition would be competent against the judge of a High Court acting as a Member of the Election Tribunal for a decision on election disputes, as while doing so he would not be acting as a High Court judge but a persona designate.

Later, in the matter of Abrar Hassan v. Government of Pakistan 1976 PLD SC 315 and others in which a practicing lawyer had challenged the appointment of Justice Abdul Kadir Shaikh as the Chief Justice of the High Court of Sindh and Balochistan while he was a permanent judge of the said court, the issue was whether or not a writ of quo warranto could be issued.

 Chief Justice Muhammad Yaqub Ali and Justice Anwarul Haq were of the view that a writ of quo warranto could not be issued against a judge, whereas Justice Salahuddin Ahmed and Justice Muhammad Gul were of the contrary view and held that a writ of quo warranto could be issued against a judge of a superior court.

This question was of power was settled in Muhammad Akram Vs Registrar Islamabad PLD 2016 SC 961 where the perused judgment held 

“Plain reading of article 199(5) of the constitution led to the conclusion that by excluding a high court and Supreme Court from the definition of ‘person’ the framers of the constitution envisaged judicial jurisdiction and not the extraneous administrative/consultative/executive matters...... Parameters of judicial powers exercised by a judge under provisions of the constitution were distinct from the non-judicial powers he exercised under the rules thus the law of Muhammad Iqbal and others Vs Lahore High Court through a registrar and others 2010 SCMR 632 held was not a good law...... Writ may be barred against an order from the high court if the order was related to judicial order or judgment whereas a writ may lie against an administrative/consultative/executive order.” 

This landmark judgment has seen its passages declared void in another judgment when the courts held in PLD 2021 SC 391 that

“Superior courts judges did not come under the definition of “persons” in view of Art.199(5) of the Constitution and therefore writ petitions filed against their executive, administrative or consultative actions were not maintainable. Judges of the superior courts did not act as persona designata while exercising executive, administrative or consultative actions. Framers of the Constitution did not intend that the remedy of a writ be available against a High Court or the Supreme Court.” 

The Courts have once again secured their immunity and have reasoned that this is done to avoid a situation where a Judge would adjudge an order from another sitting Judge and while this is very much understandable that Judicial Comity is an important aspect, from the other lens we see that Judges now have unfettered powers and immunity to judges of administrative committees. And if they pass flawed or unfair judgments in their administrative or executive capacity, then the aggrieved party will not have a Judicial Review available to them to get justice. This is extremely important because it concerns the public as the administrative and executive orders of the judges hold great implications and have far-reaching impacts and those decisions cannot be made arbitrarily thus the Judicial remedy must be available to the people.

The Judicial bench should reinterpret this legal contention and reconsider this immunity. The interpretation must be in the interest of the people of Pakistan and not to secure power and immunity so that the people who seek justice against questionable orders, do not find the doors of the Courts closed.

The writer is a lawyer and an animal rights activist working through his association B.R.U Law Associates and the NGO Pro-Nature. He can be reached via usama_khan@hotmail.com.