2024 C L C 953
[Islamabad]
Before Babar Sattar, J
SALEEM AHMED JAN----Petitioner
Versus
DEPUTY COMMISSIONER, ISLAMABAD and 6 others----Respondents
Writ Petition No.529 of 2021, decided on 1st March, 2023.
(a) Judicial review---
----Law making authority---Scope---In a polity governed by a written Constitution, all power flows from the Constitution being the fundamental law---Such Constitution while determining respective scope of authority of institutions incorporates doctrine of limited powers by design---Legislature is sovereign for it is vested with the power to write laws and also amend the Constitution, which is the supreme law---Judiciary is final for it is vested with the authority to declare what the law and the Constitution mean and how they are to be enforced---In such a scheme, the matter of interpretation and enforcement of law and Constitution falls within the province of the Judiciary---It, therefore, falls upon the Courts to determine and declare what institutional limits prescribed by the Constitution are and when an institution transgresses them---It is while determining such limits that the Judiciary often exercises self-restraint and stays its hands in various matters where it is asked to intervene, if it comes to the conclusion that a decision on the matter has been placed by the Constitution within the realm of another institution.
Marbury v. Madison (5 U.S. (1 Cranch) 137 (1803)) rel.
(b) Interpretation of Constitution---
----Written Constitution---Scope---Written Constitution is often a largely procedural document that contains bare essentials to guide functioning of the State and is unlike a very detailed substantive law or procedural code, which is why courts have to rely on the concept of implied, incidental and ancillary powers to fill in the gaps as and when required, based on the decipherable intent of the lawmaker.
The Fundamental Law of Pakistan (p. 17) By AK Brohi; McCulloch v. Maryland (17 U.S. 316 (1819)); The Constitutional Law of the United States by Willoughby; Huddart, Parker and Co. v. Moorehead (1909) 8 CLR 330, 357) and Sheikh Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501 rel.
(c) Administration of justice---
----Judge, role of---Scope---Judge is a neutral arbiter of law by virtue of his independence from his peers and from other branches of government i.e. the Executive and the Legislature---In exercise of his authority, Judge is bound by the Constitution, relevant statutes, relevant case law under the stare decisis principle and technical rules of interpretation of law---Judge is not free to decide cases as he pleases---While being an interpreter and enforcer of the law, a Judge is also a creation of the law---Judicial power entails power to interpret law in relation to facts of dispute before Court to render a binding decision and comes along with the power to enforce such decision---Authority to interpret law, authority to render binding decisions regarding rights and obligations of citizens and authority to enforce binding decisions are quintessential judicial functions---Function of interpreting law, rendering binding decisions, affecting rights of citizens or imposing penalties on them and powers to enforce such decisions cannot be vested in legislative committees or executive functionaries or usurped by executive authorities claiming to exercise quasi-judicial powers.
(d) Constitution of Pakistan---
----Art. 175---Courts and administrative bodies---Jurisdiction---Judicial control and oversight of all courts and tribunals that exercise judicial powers and dispense judicial functions is a salient feature of the Constitution that is often referred to as independence of the Judiciary within the larger framework of separation of powers---Any forum exercising judicial powers and dispensing judicial functions falls within the exclusive domain of the Judiciary and is independent of the authority and power exercised by other constitutional pillars of the state i.e. the Executive and the Legislature---Clear separation between the Executive and the Judiciary did not exist in 1973 at the time of adoption of the Constitution, which was why Art. 175(3) of the Constitution provided that such separation was to be brought about within a period of five years (which period was subsequently extended to fourteen years and had since elapsed)---Any executive authority exercising judicial power is anathema to the Constitution---To allow an administrative body to exercise judicial power and discharge judicial functions places at risk the rights of citizens, whose rights and obligations are adjudicated by a body that is not vested with requisite independence, is not bound by judicial method, does not fall within the control or supervision of a High Court, and against wrongful decision of which the citizen is not afforded effective judicial remedies.
Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Sheikh Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501; Spirit Law (1748) by Montesquieu; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Sheikh Liaquat Hussain v. Federation PLD 1999 SC 504 and United Bank Limited v. Federation of Pakistan PLD 2018 Lah. 322 rel.
(e) Constitution of Pakistan---
----Arts. 189 & 201---Decisions of Supreme Court and High Courts---Scope---By virtue of Arts. 189 & 201 of the Constitution the rule of law regime under the Constitution acquires consistency, certainty and predictability---In the event that the complaints and disputes are settled by quasi-judicial bodies, the decisions of such bodies are not legal precedents and have no binding character---While such bodies are public authorities and are obliged to act in a just, fair and reasonable manner pursuant to S. 24A of the General Clause Act, 1897, their decisions are not covered by the doctrine of stare decisis.
Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 rel.
(f) Enforcement of Women's Property Rights Act (XII of 2020)---
----Ss. 3, 4, 5, 6, 7, 8, 9 & 11---Federal Ombudsman Institutional Reforms Act (XIV of 2013), Ss. 10 (ii) & 12---Constitution of Pakistan, Arts. 8, 9, 10A, 23, 24, 175, 199, 202, 203 & 204---Constitutional petition---Vires of law---Ombudsperson, powers of---Property rights---Petitioner was aggrieved of sale of his vehicle and removal of air conditioners by respondent authorities in execution of orders passed by Ombudsman---Validity---Ombudsman, conceptually, is a part of the Executive and is vested with authority by the Executive to review exercise of authority by executive functionaries and determine whether or not such exercise amounts to maladministration---Where an act or omission amounts to maladministration, Ombudsman makes recommendation to relevant executive authority and as a matter of propriety, policy and practice the recommendation is given effect---High Court declared that provision of Ss. 3, 4, 5, 6, 7, 8, 9 & 11 of Enforcement of Women's Property Rights Act, 2020 and Ss. 10(ii) & 12 of Federal Ombudsman Institutional Reforms Act, 2013, were ultra vires Arts. 8, 9, 10A, 23, 24, 175, 202, 203 and 204 of the Constitution and were void ab initio---When provisions were declared un-constitutional, there was nothing that remained within Enforcement of Women's Property Rights Act, 2020 that could be preserved to enable the Ombudsman to continue to discharge any useful function under Enforcement of Women's Property Rights Act, 2020, in a constitutional manner---High Court directed that all matters already decided by Ombudsman pursuant to provisions of Enforcement of Women's Property Rights Act, 2020, against which no representations were filed before the President and all matters in which representations were filed and decided, such that the matters had attained finality would be treated as past and closed transactions---High Court directed that all matters which were pending before Ombudsman pursuant to Enforcement of Women's Property Rights Act, 2020, and in which decisions of Ombudsman were challenged through representations filed before the President and which representations had not been decided, shall be returned to complainants who filed complaints before Ombudsman, while issuing notice to the contesting party; and the complainants would be free to initiate legal proceedings in relation to their complaints before courts of competent jurisdiction---High Court declared that the manner in which auction of petitioner's vehicle was undertaken by the Office of Deputy Commissioner was devoid of legal authority and stood annulled---High Court directed Office of Excise and Taxation Department to revert title of the vehicle in the name of petitioner---High Court further directed respondent / auction purchaser to return the vehicle to petitioner subject to return of amount paid as consideration for the vehicle and further paid by the Office of Deputy Commissioner to respondent / complainant---As the petitioner was in wrongful possession of property of respondent / complainant, the amount generated by auction of vehicle paid by office of Deputy Commissioner to respondent / complainant in lieu of rent for possession of respondent / complainant's property by petitioner shall be treated as a past and closed transaction on grounds of equity---High Court further directed Office of Deputy Commissioner to hand over to petitioner forthwith any other electronic devices such as air conditioners owned by petitioner and taken into possession by the Office of Deputy Commissioner pursuant to orders and directions of Ombudsman---Constitutional petition was allowed accordingly.
Messrs Muslim Commercial Bank Ltd. v. Federation of Pakistan through Director, (Legal-II), President's Secretariat and 2 others 2020 CLD 829; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341, Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Sindh High Court Bar Association through Secretary v. Federation of Pakistan PLD 2009 SC 789; Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114; The Judge in a Democracy (pp. 76/77 by Aharon Barak; Princeton University Press, 2006); (118 Law Quarterly Rev 382, 388 (2002)); (cited in Judicial Independence: the Contemporary debate by Simon Shetreet and Jules Deschenes Eds. 1985); The Law of Judicial Precedent, Bryan A. Garner (Thomas Reuters, 2016, pp.5/pp.16) and Holdsworth's English Law" (Collected Legal Papers; pp 285, 290) ref.
(g) Constitution of Pakistan---
----Art. 204---Contempt of Court---Object, purpose and scope---Power to punish for contempt is part of the mechanism created by the Constitution for enforcement of law and fundamental rights guaranteed by it---Such power is a tool to protect independence of the Judiciary and to ensure that those exercising judicial powers are able to discharge their function without being influenced by considerations of fear or favour---Any provision of statute pursuant to which such judicial power is vested in an administrative body or tribunal that forms part of the Executive falls foul of Art. 204 of the Constitution---Power to punish for contempt results in a conviction and a citizen can only be convicted through exercise of judicial power---Such power is to be exercised in accordance with Art. 10A of the Constitution and adjudication required for purposes of imposition of a criminal penalty can only be undertaken by a court and not an administrative body exercising quasi-judicial authority.
(h) Enforcement of Women's Property Rights Act (XII of 2020)---
----Preamble---Constitution of Pakistan, Art. 10A---Property rights---Scope---Dispute regarding ownership and possession of property, even when involving rights of a woman, entails adjudication of legal rights and obligations which can only be undertaken by a Court exercising judicial powers in compliance with the requirement of Art. 10A of the Constitution---It is only a Court and not a quasi-judicial authority that can issue binding decisions determining civil rights of citizens or imposing penalties on them---It is only Courts that can seek enforcement of their decisions through exercise of coercive authority of the State.
Raja Ghaneem Aabir Khan and Muhammad Ilyas Khan for Petitioner.
Farrukh Shahzad Dall, Assistant Attorney General.
Shahryar Gondal, State Counsel.
Ansar Mehmood Kiani for Respondent No. 7.
Almas Ali Jovinda, Legal Advisor, Federal Tax Ombudsman.
Saleem Akhtar, Senior Legal Advisor, Banking Mohtasib Pakistan.
Asim Shahbaz Malik, Senior Law Officer, Wafaqi Mohtasib's Secretariat.