29/10/2022
سپریم کورٹ آف پاکستان کا 16 ہزار ملازمین کی برطرفی کے خلاف دائر حکومتی اپیلوں پر تفصیلی فیصلہ
عدالتِ عظمیٰ نے 1996ء سے 1999ء تک برطرف ہونے والے سرکاری ملازمین کو بحال کر دیا۔
جسٹس عمر عطاء بندیال کی سربراہی میں سپریم کورٹ کے 5 رکنی بینچ نے سماعت کی
2022 S C M R 1691
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, Sajjad Ali Shah,Syed Mansoor Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ
HADAYAT ULLAH and others---Petitioners
Versus
FEDERATION OF PAKISTAN and others---Respondents
Civil Review Petitions Nos. 292 to 302, 351 to 432, 442 to 456 of 2021 along with C.M.As. Nos. 11812 to 11814, 11837, 11862 to 11864, 11902-11903, 11982-11983, 11987, 11679, 12017, 12019, 12020, 12024, 12025, 12028, 12029, 12031-12033, 12035, 12075, 11993, 12103-12104, 12161-12162, 12172-12173, 12403, 12372-12373 of 2021 along with Civil Misc. Appeals Nos. 168, 158 and 175 of 2021, decided on 17th December, 2021.
(For review of the judgment dated 17.08.2021 passed in C.A. No.491 of 2012 and others)
Per Umar Ata Bandial, J; Sajjad Ali Shah, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ agreeing; Syed Mansoor Ali Shah, J dissenting. (Majority view)
(a) Constitution of Pakistan---
----Art. 188---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction of the Court operates in a limited area---Review does not succeed merely because a material error has crept into the disputed judgment---Instead, a review is only allowed when the material error alters the outcome of the case thereby rendering the disputed judgment bad law.
Mukhtar Mai v. Abdul Khaliq 2019 SCMR 1302 ref.
(b) Constitution of Pakistan---
----Arts. 240 & 260(1)---Civil Servants Act (LXXI of 1973), S. 2(1)(b)---Terms "Service of Pakistan" and "Civil Servant"---Said terms were not synonymous, in fact, the phrase 'service of Pakistan' appeared to be of wider import---Although the terms 'civil service' and 'service of Pakistan' are not identical they do overlap in that the former is a sub-category of the latter.
Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.
(c) Constitution of Pakistan---
----Art. 260(1)---Term "Service of Pakistan"---Test for determining whether a person is in the 'service of Pakistan'---Test whether a person is in the service of Pakistan is whether he is performing functions in connection with the affairs of the Federation---For an entity (where a person is employed) to qualify as being in the service of Pakistan, it must fulfill three criteria; first, it must exercise public or sovereign power in some form; second, the government must retain effective/substantial control over its functioning; and third its activities must be mainly financed by the government.
Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and Aitchison College v. Muhammad Zubair PLD 2002 SC 326 ref.
(d) Constitution of Pakistan---
----Art. 240---Appointments to service of Pakistan---Principles of merit, non-discrimination, transparency and fairness---Article 240 of the Constitution is simply the bedrock on which appointments to the service of Pakistan are to be made; it is then the responsibility of the appointing authorities to ensure that appointments are made strictly in accordance with the relevant laws (including the applicable rules and regulations) that incorporate the principles of merit (selection through a competitive process), non-discrimination, transparency and fairness---Same principles apply to appointments on any post in public service since an organisation can only best serve the people when all its employees are qualified individuals who are selected through a fair and transparent process---In the absence of dedicated supporting staff, no senior officer sitting at the helm of affairs can succeed in guiding the nation towards prosperity---However, it is significant that said principles are not merely fruit of judge made law but they also emanate from the fundamental rights enshrined in the Constitution, especially Article 18 (freedom of trade, business or profession) for which reason they occupy an immutable character.
Mubashir Raza Jaffri v. Employees Old-Age Benefits Institutions 2014 SCMR 949; Mushtaq Ahmad Mohal v. Honourable Lahore High Court 1997 SCMR 1043; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287 and Abdul Jabbar Memon: In re 1996 SCMR 1349 ref.
(e) Sacked Employees (Re-instatement) Act (XXII of 2010)---
----Ss. 2(d), 2(f)(vi), 4, 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9, 14, 18, 25, 184(3), 187, 188, 240 & 242---Supreme Court Rules, 1980, O. ###III, R. 6---[Per Umar Ata Bandial, J. (Majority view): Initial appointment of majority of the reinstated employees ('the beneficiary employees') was made without following the principles of merit, non-discrimination, transparency and fairness---Through operation of section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service---Furthermore the 2010 Act discriminated against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999---Such classification of the time period was neither reasonable nor based on any intelligible differentia---By giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached --- Act of 2010 was violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 & 242, therefore the same was declared to be void with retrospective effect---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010]---[Per Syed Mansoor Ali Shah, J. (Minority view): Vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament could not be examined and declared ultra vires, on the touchstone of Articles 4, 240 & 242 of the Constitution, as said Articles did not provide any criterion to test the vires of a law---Parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act showed that the persons to be reinstated in service had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government during that period, and the object of the 2010 Act was to provide relief to such persons---Hence, persons reinstated formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and it had a rational nexus to the object sought to be achieved by the 2010 Act, therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment under Article 25(1) of the Constitution---However, the issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) & 10 of the 2010 Act---Such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the 'right to dignity' and 'right to equality before law' as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees---Proper course, in such circumstances, was for the Court to declare (as ultra vires) only that part of the provisions of sections 4(a) & 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher" and this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act---Furthermore sections 2(f)(vi), 11, 12 & 13, of the 2010 Act which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, were also ultra vires the Constitution].
Per Umar Ata Bandial, J. (Majority view):
The material on record in the present case, furnished by the relevant Ministries/Divisions, establishes that these principles of merit, non-discrimination, transparency and fairness were not followed in the vast majority of the initial appointments (from 01.11.1993 to 30.11.1996). Therefore, such defective appointments suffered from illegality and were void.
For the initial appointments of reinstated employees ('the beneficiary employees') that were illegal from the outset, it was not within the competence of Parliament to enact laws that firstly, bypassed the settled requirements enshrined in the Constitution for joining public employment and secondly, protected these unlawful appointments without curing their respective defects. Such contravention can be seen in section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') where all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service.
State and public functionaries act as fiduciaries for and are responsible/accountable to the people of the country. They are duty bound to act in the furtherance of public interest. However, how the public interest was promoted by reinstating the beneficiary employees in question who had been inducted without complying with the duly prescribed procedure for appointment is neither determinable nor defensible.
In re: Suo Motu 2010 SCMR 885 ref.
The 2010 Act was enacted to achieve a specific object and purpose, namely, the reinstatement of those employees who had been initially appointed during tenure of a political party. The 2010 Act discriminates against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999. The Preamble of the 2010 Act coupled with its substantive provisions do not disclose the reason for reinstatement of only those employees who had been dismissed, removed or terminated from service during the specific period of 01-11-1996 till 12-10-1999. Clearly then the Act's classification of the time period is neither reasonable nor based on any intelligible differentia. There is also no rational nexus with the object being sought to be achieved because if the intent of Parliament was to assist people who had been dismissed, removed or terminated from service on account of political victimisation then there is no rhyme or reason as to why only the persons dismissed, removed or terminated between 01-11-1996 and 12-10-1999 were granted this relief. Surely such a classification ought to have been preceded by some study, data collection and analysis, however, the same are lacking. There must exist a plethora of people since independence of the country (till date) who have been unfairly removed from service on account of political victimisation yet no favour is extended to them by the 2010 Act.
Mobashir Hassan v. Federation of Pakistan PLD 2010
SC 265 ref.
The reinstatements under the 2010 Act were carried out without following any proper procedure and without having regard to the nature of the posts occupied by the beneficiary employees during their initial appointments. On the other hand, the regular employees were inducted into service after fulfilling all the codal formalities. Therefore, by giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached, in particular Articles 4, 9 and 18 of the Constitution. Said three constitutional provisions envisage a State in which all aspects of a citizen's life, including his/her right to enter a profession, will be regulated by law. Nevertheless, the 2010 Act by reinstating the beneficiary employees whilst ignoring the applicable laws, rules and regulations, which detailed the process to be followed in making appointments, has flouted these guarantees of the Constitution. Therefore, the 2010 Act has directly impinged upon the fundamental rights of regular employees.
Argument that the judgment under review should have read down section 4 of the 2010 Act and preserved its watered-down version along with the other provisions of the Act that were not inconsistent with fundamental rights, fails to recognise two important aspects of section 4; firstly, section 4 as it stands does not suffer from just a singular defect. Instead, it is fundamentally flawed. It not only provides one-step higher regularisation in subsection (a) [which could potentially have been read down] but it also regularises all beneficiary employees regardless of the post they were occupying before their initial termination. This defect is so central to section 4 that to read it down would essentially require the Court to rewrite it which is not permissible as such an exercise would enter into the realm of legislation. Secondly, section 4 is the governing/primary provision of the 2010 Act. Therefore, once it is declared unconstitutional no substance is left in the 2010 Act as all other provisions are secondary to section 4 and cannot control the operation of the 2010 Act on their own. As a result, no purpose will be achieved in retaining the 2010 Act on the statute book when its effect will have been destroyed by the deletion of section
Zahid Iqbal v. Muhammad Adnan 2016 SCMR 430 ref.
Since the 2010 Act has been adjudged to be violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 and 242, the judgment under review would have retrospective effect.
Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206 ref.
Supreme Court considered that having rendered a service of 10 years or more since their reinstatement under the 2010 Act (and Ordinances before that), the beneficiary employees, most of whom are nearing retirement and have minimal future job prospects, have dedicated a considerable period of their life to their employers and so deserve to be treated with leniency. More so, when through no fault of their own, the beneficiary employees were inducted and subsequently reinstated into the service of their employers without the fulfilment of the necessary codal formalities. Therefore, in exercise of its inherent power conferred under Order ###III, Rule 6 of the Supreme Court Rules, 1980 and in reliance of its power to do ex debito justitiae, the Supreme Court converted present review proceedings filed under Article 188 of the Constitution into proceedings under Article 184(3) read with Article 187 to grant the following relief to the beneficiary employees:
(i) The beneficiary employees who were holding posts for which no aptitude, scholastic or skill test was required at the time of initial termination (01-11-1996 to 12-10-1999) shall be restored to the same posts they were holding when they were terminated by the judgment under review;
(ii) All other beneficiary employees who were holding posts on their initial termination (01-11-1996 to 12-10-1999) which required the passing of an aptitude, scholastic or skill test shall be restored to the posts, on the same terms and conditions, they were occupying on the date of their initial termination. However, to remain appointed on these posts and to uphold the principles of merit, non-discrimination, transparency and fairness expected in the process of appointment to public institutions these beneficiary employees shall have to undergo the relevant test, applicable to their posts, conducted by the Federal Public Service Commission within 3 months from the date of receipt of this judgment;
(iii) The improvement in the terms and conditions of service of all the beneficiary employees shall be granted strictly in accordance with the applicable laws, rules and regulations;
(iv) The relief granted in sub-paragraphs (i) and (ii) above shall not be granted to those beneficiary employees whose initial termination of service (01-11-1996 to 12-10-1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a court of law. [pp. 1732, 1733, 1734] U, V, W, X & Y
Sher Alam Khan v. Abdul Munim PLD 2018 SC 449; Muhammad Akram v. Registrar, Islamabad High Court PLD 2016 SC 961 and Gul Taiz Khan Marwat v. Registrar, Peshawar High Court PLD 2021 SC 391 ref.
All review petitions were dismissed and all applications/appeals were disposed accordingly. [p. 1734] Z
Per Syed Mansoor Ali Shah, J. (Minority view):
The vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament (Legislature) cannot be examined and declared ultra vires, on the touchstone of Articles 240 and 242 of the Constitution as both these Articles only command for dealing with the matters specified therein by an Act of the Parliament, and provide for nothing more. Article 240 does not provide any criterion for judging the constitutionality of an Act of the Parliament, except that the Act of Parliament must relate to the appointments to and the conditions of service of persons in the service of Pakistan concerning the Federation, not concerning any Province other than All-Pakistan Service which is a service common to the Federation and the Provinces. Likewise, the constitutional limitation on the power of the Parliament to enact a law under Article 242 is that it can enact a law for the establishment of a Public Service Commission and prescribing its functions, in relation to the affairs of the Federation, not of any Province. Said aspect of the provisions of Articles 240 and 242 of the Constitution was not presented by the parties before the Court, and the same thus escaped notice of the Court in applying the said Articles of the Constitution to judge the constitutional vires of the 2010 Act, in the judgment under review.
Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.
Similarly, Article 4 of the Constitution, which provides for a right to be dealt with in accordance with law, does not provide any criterion, and thus cannot be a touchstone, to test the vires of a law such as the 2010 Act. [p. 1763] W2
Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and LDA v. Imrana Tiwana 2015 SCMR 1739 ref.
Parts from the parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act, made by the parliamentarians who were member(s) of the Standing Committee that had considered and approved the Bill as well as by the other parliamentarians who had supported the same, showed that the reason for choosing the persons appointed in and dismissed from service during the specified period, for the beneficial treatment of reinstatement and regularization in service notwithstanding any other law on the subject, was that they had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government (Executive) during that period, and the object of the enactment of the 2010 Act was that the Parliament (Legislature) intended to provide relief to such persons. Nobody disputed before the Supreme Court, the correctness of the factual statement regarding political victimization made by the parliamentarians, nor does such statement of fact appear to be inherently improbable; it is, rather, supported by the circumstance that a large number of employees, not a few, were sacked during the specified period. Therefore, the Court is to proceed on assuming that undisputed statement of fact to be correct.
After accepting the undisputed statement of fact that the persons going to be reinstated under the 2010 Act had suffered "political victimization", in the matter of their dismissal, removal or termination from service, there remains no difficulty to hold that they formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and had a rational nexus to the object sought to be achieved by the 2010 Act. Therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment, guaranteed by Article 25(1) of the Constitution, of other employees sacked in other durations as well as of regular employees appointed under the general laws relating to the appointments to and terms of conditions of the service concerned.
Prabodh Verma v. State of U.P. AIR 1985 SC 167 and Amarendra Kumar v. State of Orissa AIR 2014 SC 1716 ref.
The issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) and 10 of the 2010 Act. Their reinstatement and regularization on "one scale higher" had made them senior to those regular employees who were senior to them even as per their date of initial appointments and were serving in the same grade and post in which they had been appointed prior to the initial appointment of the reinstated employees, because of the slow channel of promotion. Therefore, to the extent of reinstatement and regularization of some sacked employees, under Sections 4(a) and 10, on "one scale higher", such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the fundamental 'right to dignity' guaranteed under Article 14 and fundamental 'right to equality before law' guaranteed by Article 25 of the Constitution as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees. The proper course, in such circumstances, was that the Court should have declared (as ultra vires) only that part of the provisions of sections 4(a) and 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher". And this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act, and reading down those provisions to mean that the sacked employees mentioned in those Sections were to be reinstated and regularized in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation from which they had been dismissed, removed or terminated from service, for the purpose of saving the constitutional validity of those provisions and construing them as constitution compliant.
Sections 2(f)(vi), 11, 12 and 13, of the 2010 Act which deal with and provide for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, had the effect of nullifying, or giving the power to the Executive to nullify, the judicial orders passed on charge of misconduct, inefficiency or unfitness that had attained finality. Such employees, even, do not fall within the class of the sacked employees who had suffered "political victimization," envisaged by the 2010 Act for a beneficial treatment. The said Sections of the 2010 are, therefore, ultra vires the Constitution.
All the employees terminated from service on the basis of the judgment under review, stand restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay. The cases decided by the judgment under review, which now stands recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of the Supreme Court in accordance with the provisions of the 2010 Act, subject to the above declarations regarding vires of certain provisions of the 2010 Act.
Per Umar Ata Bandial, J (Majority view):
(f) Constitution of Pakistan---
----Art. 25---Equality of citizens---Reasonable classification---Scope---Although Article 25 of the Constitution envisages equality amongst citizens, it also allows for differential treatment of persons who are not similarly placed under a reasonable classification---However, to justify this difference in treatment the reasonable classification needs to be based on intelligible differentia that has a rational nexus with the object being sought to be achieved'---Only if this test is satisfied can the distinct treatment meted out to a class of persons be sustained under Article 25 of the Constitution.
Commissioner Inland Revenue v. Tariq Mehmood 2021 SCMR 440 ref.
(g) Interpretation of statutes---
----Reference to legislative history---Scope---Reference to legislative history is permissible only as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity i.e. from the text of a statute, the court is unable to decipher the real intent of the Legislature.
Gulshan Bibi v. Muhammad Sadiq PLD 2016 SC 769 ref.
(h) Constitution of Pakistan---
----Arts. 184 & 185--- Judgments/orders of the Supreme Court---Academic exercise---Ordinarily the Supreme Court does not enter into purely academic exercises.
Munawar Iqbal Gondal v. Nasira Iqbal 2014 SCMR 860 ref.
(i) Constitution of Pakistan---
----Arts. 184 & 185--- Judgments of the Supreme Court---Prospective/retrospective effect---Scope---Judgments of the Supreme Court operate prospectively, however, they could operate retrospectively if so declared---Consequently, there is no binding rule that all judgments issued by the Court take effect only from the date of pronouncement.
Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 ref.
(j) Locus poenitentiae, principle of---
----Applicability---Principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.
Azam Shah v. Federation of Pakistan 2022 SCMR 201 ref.
Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, J.
(k) Separation of powers, doctrine of---
----Scope of the doctrine of Separation of powers in a constitutional democracy stated.
Separation of powers is the backbone of a constitutional system. The legislature, the executive and the judiciary have no authority beyond that granted to them under the Constitution. None of them is omnipotent.
Cooper v. Canada [1996] 3 S.C.R 854, 867 ref.
Separation of powers means reciprocal checks and balances between the different branches. It does not mean walls between the branches but rather bridges which balance and check. The concept of separation of powers is not to maximize efficiency but rather to maximize freedom. The principle of separation of powers has double meaning: First, it means distinguishing among different branches of government, giving each branch a central and primary function. Second, it means that different branches have reciprocal relationship in which each checks and balances over the other branches. Thus, for example, the legislature can change the rules of the game by amending the existing law or by enacting new law, but it must do so within the framework of the Constitution. On the other hand, the judiciary is authorized to interpret the Constitution and law but it is not authorized to create, amend or rewrite the Constitution or to enact a new law. Judiciary, like the other branches of the government, is also not invincible but is to function under the supreme law of the land i.e., the Constitution.
Myers v. United States 272 US 52, 293 (1926) and Responding to Imperfection: The Theory and Practice of Constitutional Amendments (Stanford Levison ed., 1995) and Aharon Barak, The Judge in Democracy ref.
The primary and central function of the legislative branch is to create laws and the courts must give weight to the purpose of the law remembering that legislation promotes social policy and is a tool for achieving a societal goal. This subjective purpose of the statute becomes a key factor in interpreting the statute. Therefore, in the first instance, the role of the courts is to safeguard and actualize these laws in the public interest. Judges should therefore give statutes a meaning that bridges the gap between the law and the social reality. Next is the objective purpose of the statute, where it honours and protects the constitutional values, and the fundamental rights of the people. It is only when the subjective or the objective purpose of the legislature outsteps the constitutional boundary that the courts interfere and set the course right by enforcing the constitutional limits. Even in that case when the courts rule that a statute is unconstitutional and invalidates it, it does not undermine the legislature or violate the separation of powers because it is the principle of separation of powers that informs us that legislative authority does not include the authority to pass unconstitutional laws. Hence, the principle of separation of powers is the very source of judicial review.
(l) Judicial review---
----Scope---Legislation is the manifestation of the will of the people and the collective wisdom of their chosen representatives in the Parliament---Courts must therefore tread carefully to judicially review the act of the legislature---First, efforts should be made by the Court to save the constitutionality of the legislation by exhausting the interpretative tools e.g. of "reading down" or "reading out" to make the legislation constitution compliant---Only when the legislation happens to be opposed to the constitutional values and the fundamental rights and allowing such a statute to remain on the statute book would be unconstitutional, should the courts interfere---Such freedom and respect is enjoyed by the branches of the government under a prosperous and a progressive constitutional democracy.
(m) Constitution of Pakistan---
----Arts. 184(3) & 188---Constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Scope---Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution cannot be exercised as a parallel review jurisdiction, and a judgment or an order of the Supreme Court can never be challenged by virtue of filing independent proceedings under Article 184(3) of the Constitution---Such course is absolutely impermissible.
Shabbar Raza's case 2018 SCMR 514 ref.
(n) Supreme Court Rules, 1980---
----O. XI, R. 1, Second proviso---Semper praesumitur pro negante, rule of---Scope---When the Judges of an appellate Court are equally divided in their opinion, the judgment of the Court below is affirmed and maintained, and the decision given pro negante is authoritative and binding as any other decision of the appellate Court---However, the said rule is not applicable to the final decision of a case by the Supreme Court in view of the second proviso to Rule 1 of Order XI of the Supreme Court Rules, 1980, which provides that "if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice." Hence, the application of the rule of pro negante decision is restricted to the division of opinion on a point of law decided in the judgment of the Supreme Court, notwithstanding of which there is a majority of opinion on the final decision of the case.
Inland Revenue v. Scottish General Electric Power Co. (1931) UKHL 15 TC 761 ref.
(o) Judgment---
----Judgment in rem---Neither necessary nor the requirement of law that Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by judgment in rem---Meaning and scope of a judgment in rem stated.
A judgment in rem binds the parties and the nonparties alike. A judgment in rem settles the fate of the res by determining its status and thus operates directly on the res itself; it binds all persons claiming a right or interest in or under the res, even though pronounced in their absence.
Federation v. Qamar Hussain PLD 2004 SC 77 ref.
In actions in rem it is neither practicable nor is it the requirement of law that the Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by the judgment. However, for complying with the constitutional command of fair trial and due process to a possible extent in such cases, the Court may order, as it is usually done by the civil courts dealing with actions in rem, for service of the public notice of the case through its publication in the press or any other mode deemed appropriate, for the knowledge of the persons likely to be affected by the judgment, who may then appear before the Court and seek permission to intervene and argue in the proceedings.
Surinder Kumar v. Gian Chand 1958 SCR 548; SHCBA v. Federation PLD 2009 SC 879 and Justice Bhinder v. Federation PLD 2010 SC 483 ref.
(p) Interpretation of statutes---
----Aid to statutory interpretation---Parliamentary debates---Scope---Parliamentary debates, especially the speech made by the mover of the Bill or by the chairman or member(s) of the Standing Committee that considered the Bill, explaining the reason for introducing the Bill can be referred to for ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted.
Mubeen-Us-Salam v. Federation PLD 2006 SC 602; Benazir Bhutto v. Federation PLD 1988 SC 416; Pepper v. Hart (UKHL) 1993 SCMR 1019 and K. P. Varghese v. ITO, Ernakulam AIR 1981 SC 1922 ref.
(q) Constitution of Pakistan---
----Art. 25---Equality of citizens---Reasonable classification---Scope of reasonable classification stated.
Article 25(1) of the Constitution which declares, and guarantees as a fundamental right, that all citizens are equal before law and are entitled to equal protection of law, does not prohibit reasonable classification for equal treatment, that is, "equality among equals", which is based on intelligible differentia, distinguishing persons or things that are grouped together from those who are left out, and has a rational nexus to the object sought to be achieved by law. And a classification having a reasonable basis does not offend against fundamental right to equality, merely because it is not made with mathematical nicety or because in practice it results in some inequality. Further, when the classification made by a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed, and the one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary.
Jibendra Kishore v. East Pakistan PLD 1957 SC 9; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Schwartz, Constitution of the United States, Vol. II, p. 501 and Willis, Constitutional Law of the United States, pp. 579-580 approvingly cited in Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.
(r) Vires of statute---
----Courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down---Cardinal principles of construction of statutes stated.
Two cardinal principles of construction of statutes are, (i) that there is always a presumption in favour of the constitutionality of a legislative enactment (a law); and (ii) that a law enacted by a competent legislature is to be construed in such a manner that its constitutional validity may be saved rather than destroyed. It is because of these principles that the courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down by declaring them as unconstitutional. The one who challenges the constitutionality of a law bears the burden to show that the law is violative of any of the constitutional provisions, and when two opinions as to the construction of a law are possible, the courts prefer to adopt that which upholds the constitutionality of the law, over that which does not. The courts, therefore, construe a law in such a manner that saves the law than destroys it, and declare it unconstitutional only when it clearly contravenes any constitutional provision and cannot be read as constitution compliant by applying any of the methods, techniques or tools of rule of constitution complaint construction, e.g., reading out or reading down. The primary purpose of applying these techniques, methods or tools, is to endeavor for saving the constitutional validity of the statute, to a possible extent, and the main reason for applying them in preference to declaring the law unconstitutional is that their application makes the process of judicial review of legislative actions less intrusive than invalidating the whole law, as the court should not strive officiously to kill a law to any extent greater than it is compelled to do. Declaring the law unconstitutional is thus one of the last resorts taken by the courts.
SSGCL v. Federation 2018 SCMR 802 and Dunkley v. Evans [1981] 1 W.L.R. 1522 ref.
(s) Vires of statute---
----'Reading out' (severance) and 'reading down' parts of a statute---Principles stated.
Courts apply the methods of "reading out" (severance) and "reading down", with certain conditions, for the purpose of construing the provisions of a law as constitution compliant and to save it, as much as possible, from being declared ultra vires the Constitution. The primary condition for applying these methods for a constitution compliant construction is to see whether the Legislature would have enacted the law in the form that remains or turns out to be after application of any of the said methods. Further, in case of applying the method of reading out (severance) the court is to see whether after reading out (severing) the invalid part, the remaining provisions of law would remain operative within the scope of the object of the law. Therefore, when confronting a constitutional flaw in a statute, court should try to limit the solution to the problem - severing the flawed portion while leaving the remainder intact. Because the unconstitutionality of a part of a statute does not necessarily defeat or affect the validity of its remaining provisions. If after severing the flawed part, the remaining provisions of law would remain fully operative, court must sustain those provisions unless it is evident that the Legislature would not have enacted those provisions independently of that which is invalid.
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Muhammad Khawer Masood Teepoo
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