P L D 2021 Lahore 544

Before Shahid Karim, J

VICE-CHAIRMAN PUNJAB BAR COUNCIL and
others---Petitioners
Versus
GOVERNMENT OF THE PUNJAB and others---Respondents
Writ Petition No. 19469
of 2021, heard on 3rd May, 2021.
(a) Constitution of Pakistan---
----Art. 128---Ordinance---Power to promulgate Ordinance by Governor---Such
power vests in Governor by Art.128 of the Constitution---In essence it is a
legislative power but in actuality it is exercised by political executive.
The Bribery Commissioner v. Ranasinghe (1964) 2 All E.R. 785, 790 rel.
(b) Constitution of Pakistan---
----Art. 128---Ordinance, promulgating of---Pre-conditions---Power to
promulgate
Ordinance by Governor is subject to the condition that Provincial
Assembly is not
in session and he is satisfied that circumstances exist which
render it necessary to
take immediate action.
Chief Constable v Evans (1982) All ER 141, 154 and Marbury v Madison
(1803)
5 US 137 rel.
(c) Constitution of Pakistan---
----Art. 139---Punjab Government Rules of Business, 2011, Rr. 25, 26 &
27---
Decision by circulation by the Cabinet---Scope---Decisions by circulation
by
Cabinet must be based on certain prior actions and cannot be simply done on
a
summary prepared by Secretary Law---Such decisions must be compliant of the
procedure laid down in Rr. 25, 26 & 27 of Punjab Government Rules of
Business,
2011, read cumulatively.
(d) Constitution of Pakistan---
----Art. 116---Punjab
Government Rules of Business, 2011, R.33 (1)---Proposed
legislation, initiation
of---Procedure---Proposed legislation under R.33 (1) of
Punjab Government Rules
of Business, 2011, has to be initiated by department
concerned which has to
obtain approval of Cabinet for the issue involved before
asking Law and
Parliamentary Affairs Department to give legal shape to a bill.
(e) Constitution of
Pakistan---
----Art. 116---Punjab
Government Rules of Business, 2011, R. 20---Legislation,
initiation of ---Role
of Law and Parliamentary Affairs Department---No legislation
can be originated
from office of Law and Parliamentary Affairs Department.
(f) Code of Civil
Procedure (Punjab Amendment) Ordinance (VII of 2021)---
----Preamble---Punjab
Government Rules of Business, 2011, Rr.20, 25, 26, 27, 33
&
35---Constitution of Pakistan, Arts. 128, 199 & 202---Constitutional
petition---
Amendment in Civil Procedure Code, 1908, vires of---Compromising
provincial
autonomy---Direction by Prime Minister---Dictated exercise of powers---Failure to
consult High Court---Scope---Petitioners assailed promulgation of Code of Civil
Procedure
(Punjab Amendment) Ordinance, 2021, on the plea that it was not a valid
piece
of legislation---Validity---Procedural formalities for an Ordinance to be
issued and promulgated were to be put to wayside while enacting an Amendment
Ordinance---Concept of provincial autonomy was encapsulated in Rr.33 & 35
of
Punjab Government Rules of Business, 2011, in the matter of promulgation of
an
Ordinance---Any direction by Prime Minister or by Federal Government
offended
sovereignty of Province (Punjab) in law-making process and was ultra
vires to
principle of illegality and dictated exercise of powers---Such was an example of
Federation
commandeering provincial law-making, which was complied by the
Province (Punjab)
mechanically---By so doing Punjab not only abdicated its
provincial authority
but compromised individual rights which it was obliged to
protect---Punjab,
despite Prime Minister's direction was to engage in deliberative
process with
stakeholder and law had to undergo an independent analysis regarding
its
efficacy in Punjab---Consultation with High Court was not normally a sine qua
non but in peculiar circumstances where across the board amendments in rules
were
made by Committee of High Court only a few months ago, the Government of
Punjab was obligated to have consulted High Court of Punjab for the purposes of
reconciliation of two amendments in order to avoid inconsistency and
confusion---
Amendments in question disregarded previously enacted Lahore High
Court
amendments which too not only had statutory but constitutional basis and
were
result of thoughtful and inclusive consultative process---Amendments in
question
were also liable to be struck down on the ground that there was no
prior
consultation with Lahore High Court in order to streamline and reconcile
amendments made through Code of Civil Procedure (Punjab Amendment)
Ordinance,
2021 with Lahore High Court amendments which had their source in
the
Constitution---High Court struck down amendments in question as Code of
Civil
Procedure (Punjab Amendment) Ordinance, 2021, was without lawful
authority and
of no legal effect and was unconstitutional---Constitutional petition
was
allowed in circumstances.
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; American
Constitutional Law (Third Edition-Volume One); U.S v. Lopez 115 S.ct.1624
(1995); Amax Potash Ltd. v. Saskatchewan, 2 S.C.R. 576, 590 (1977); K.E.
Swinton, the Supreme Court of Canada and Canadian federalism: the
Laskin-
Dickson years 57-58, 65-68 (1990); Garcia v. San Antonio Metropolitan
Transit
Authority, 469, U.S 528 (1985); New York v. United States, 505 US 144
(1992);
Printz v. United States, 521 U.S 98 (1997) and PLD 2005 Lah. 662 rel.
(g) Constitution of Pakistan---
----Art. 139 (3)---Rules of Business---Status---Rules of Business are
Constitutional
rules and occupy a pedestal higher than ordinary statutory rules
formulated under
delegated exercise of power.
Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.
(h) Constitution of Pakistan---
----Art. 1---Interpretation of
Constitution---"Republic"---Scope---Constitution
envisages a limited
government which means that it has put in place a system of
restraints and
limitations to constrain its power and to define its periphery---In
Pakistan it is a
representative democracy in which people act not directly but through
their
"representatives"---Such system of government is called
"republicanism"---
"Republic" is a democracy but a
representative democracy.
McCulloch v. Maryland (1819) 17 US 316; Gregory v. Ashcroft, 501 US 452
(1991) and Constitutional Interpretation, 2009 Harvard Law Review 2004 rel.
(i) Constitution of Pakistan---
----Art. 1---"Federalism"---Provincial
autonomy---Scope---Constitution has placed
a number of constraints on Federal
Government and Parliament lest they may not
trample upon provincial autonomy
and disregard principle of federalism on which
Constitutional structure stands.
McCulloch v. Maryland 17 U.S. (4 Wheaton) 316 (1819) and Rawalpindi Bar
Association v. Federation PLD 2015 SC 401 rel.
(j) Constitution of Pakistan---
----Arts. 4 & 5---Rule of law---Scope---In a country governed by a
written
Constitution, the written Constitution is the rule of law---While the
rule of law
underlines entire Constitution in particular---Provisions of Arts.
4 & 5 of the
Constitution embody the essence of the rule of law.
Jamal Shah v. Election Commission PLD 1966 SC 1 and Ahmad Nawaz v.
Pakistan PLD 1998 Sindh 180 rel.
(k) Constitution of Pakistan---
----Art. 149(3) & (4)---Direction to Provinces by the Federation---Principle---
Circumstances
under which directions may be issued to Provinces by the Federation
have been enumerated in
Arts. 149(3) & (4) of the Constitution---None of these
Articles comprised
circumstances under which a direction to make a law may be
given by Federal
Government---Direction may only relate to exercise of the
Executive authority
of Federation and in no other case.
(l) Civil Procedure Code (V of 1908)---
----Preamble---Composition---Principle---Civil Procedure Code, 1908, is an
amalgam of substantive and procedural laws---Substantive part contains
provisions
enacting fundamental principles of procedural law but rules provide
procedure to
be followed by Courts in application of those principles.
(m) Constitution of Pakistan---
----Art. 202--- Rules of procedure---High Court, jurisdiction of---Scope---High
Courts
have been conferred Constitutional power regarding rules of procedure
which may
not only regulate practice and procedure of High Court but also any
Court
subordinate to it.
(n) Constitution of Pakistan---
----Arts. 89 & 128---Ordinance promulgating power---Scope---Ordinance
making
power is not fixed in Legislative cement but written in softer sand of
Executive
order.
 Muhammad Ahmad Qayyum, Amjad Iqbal, Abdul
Basit Khan Baloch, Umat ur
Rehman Shafqat, Shehzad Ahmad Cheema, Baleegh uz
Zaman Chaudhry, M.A
Fatmi, Muhammad Jameel Rana, Asad Abbas Dhother, Taha
Shaukat, Mirza Waqas
Baig, Muhammad Ali Raza Saeed, Ghulam Mustafa Umair, Hamid
Raza and Rai
Mazhar Hussain for Petitioners
Waqar Saeed Khan, A.A.G., Muhammad
Shahzad Shaukat and Mirza Nasar
Ahmad, Amici Curiae for Respondents.
Date of hearing: 3rd May, 2021.
JUDGMENT
SHAHID KARIM, J.---This judgment shall also decide constitutional
petitions
W.P No. 19343 of 2021, W.P No.21325 of 2021 and W.P No.13908 of 2021.
All of
these petitions present for review the provisions of the Code of Civil
Procedure
(Punjab Amendments) Ordinance, 2021 ("Amendment
Ordinance"). It was
promulgated and published in the Punjab Gazette on
10.02.2021. The petitioners
contend that the Amendment Ordinance is ultra vires
the Constitution of Islamic
Republic of Pakistan, 1973 ("the
Constitution") as it offends the provisions of the
Constitution and thus
the promulgation is caught by the vice of unconstitutionality.
2. The case of the petitioners can be captured
in the following contentions:
"1.
The Code of Civil Procedure (Punjab Amendments) Ordinance 2021 (The
'Amendment
Ordinance') is ultra vires Articles 202 and 203 of the
Constitution and is
violative of the basic structure of the Constitution which
includes
independence of judiciary and the fundamental rights of the
litigants and
citizens of the Province of Punjab, inter alia effectively
destroying recent
amendments and reforms introduced to the Code.
a.
Article 202 of the 1973 Constitution was newly added and approval of
Governor
was removed as had been in the from the equivalent article in
1962 constitution
to ensure independence of judiciary. The passage of the
Ordinance in effect
renders the change to naught.
b.
The Amending Ordinance is ultra vires Articles 202 and 203 particularly as
the
same was issued without consultation with the Lahore High Court or
even with
its knowledge.
c.
The Amending Ordinance violates the independence of judiciary as it renders
at
naught all the procedural changes previously made in the Orders of the
C.P.C.
(Schedule-I).
2.
The issuance of any Ordinance under Article 128 of the Constitution requires
satisfaction of the Governor before said issuance and no evidence of any
material being available is available on record of the basis of formation by
the Governor or Cabinet.
3.
That given that the present Amending Ordinance overrides the 2020 C.P.C.
Amendment Ordinance, there is no material on record indicating reasons for
a
change of satisfaction as well.
 5.
That various individual provisions too are ultra vires the previous
well-
considered Amendments made in 2018 by the Lahore High Court (p.16 of
WP) and in effect renders them at naught, that too without prior consultation
with the High Court.
6.
That the Ordinance entirely disturb the entire scheme of the C.P.C. Entire
process put in Ss. 25 and 26 and in effect renders the entire Schedule I of the
C.P.C. to naught, which once again is ultra vires the independence of
judiciary
and Articles 202 and 203 of the Constitution.
7.
That the Code is a special type of law which requires active consultation
between the Legislature and the Judiciary as Schedule 1 is managed by the
Judiciary and the sections by the Legislature. One cannot be allowed to
contradict the other and in so far as the Amending Ordinance is without
active
participation and consultation of the Lahore High Court, the same is
liable to
be set aside as such."
3. The learned counsel appearing in W.P
No.19343 of 2021 and connected
petitions made initial arguments based on the
rule that there was no debate on the
various provisions of the Amendment
Ordinance as also reiterated the arguments of
Mr. Muhammad Ahmad Qayyum,
Advocate regarding the entirety of the
Amendment Ordinance being ultra vires
Article 202 read with Article 175 of the
Constitution. These arguments of the
learned counsel in this Court shall be dealt
with during the course of this
opinion.
4. The learned A.A.G filed written statement on
behalf of Province of the Punjab
("Punjab") and retorted that the
Amendment Ordinance is constitutional. It was
based on the advice of the Chief
Minister to the Governor and the opinion to be
formed by the Governor under
Article 128 of the Constitution is subjective and is
not liable to interference
by this Court by superimposing its opinion for that of the
Governor. The
Advocate General Punjab chose not to appear pursuant to notice
under Order
XXVII, A, C.P.C. and did not file any written statement.
Opinion of the Court:
5. As adumbrated, the primary argument of the
petitioners was that the
satisfaction of the Governor prior to promulgation of
the Amendment Ordinance
under Article 128 of the Constitution must be based on
existence of objective
conditions justifying the issuance of the Ordinance
which has urgency as its
primary consideration. Further this Court has the
jurisdiction to examine whether
the prerequisites provided in Article 128 of
the Constitution for the exercise of
power thereunder existed when the
Amendment Ordinance was promulgated. If the
answer to the above question is in
the negative, the exercise of power will be
without jurisdiction inviting an
interference by this Court. The exercise of power by
the Governor is hedged in
by two conditions-precedent. Firstly, the Assembly
should not be in session and
second the circumstances must exist which render it
necessary to take immediate
action. It was further argued that to what purpose is
the doing of something
tied to a precondition if that something can be done in
disregard of the
precondition or prerequisite.
 6. Notwithstanding the above arguments, Punjab
filed its written statement and
attached documents with that written statement
which have given rise to further
grounds of challenge. Having read those
documents, the learned counsel for the
petitioners as well as amicus curiae
appointed by this Court focused their attention
on the fresh ground which arose
out of consideration of these documents. The new
grounds, in a nub, are
premised on the twin challenge of dictated exercise of power
by Punjab and
infringement of the Punjab Government Rules of Business 2011
(Rules of
Business) in a manner of submission of the case regarding promulgation
of the
Amendment Ordinance to the Governor. Closely tied in with the challenge
based
on dictation is the broader question of republicanism and constitutional
balance of federal and provincial powers. Since these petitions are being
decided on
the basis of the latter challenge, it will not be necessary to
advert to the earlier
challenge regarding the purported violations of the
preconditions for the
promulgation of an ordinance under Article 128 of the
Constitution and its
amenability before this Court.
The documents submitted by Punjab:
7. The learned A.A.G filed a set of documents
to support the contents of the
written statement on behalf of Punjab. By
collating these documents which make an
interesting reading the process by
which the relevant departments of the
government proceeded to prepare a summary
for the Chief Minister and finally
culminated in the advice to the Governor for
the ordinance to be promulgated is
unraveled. The first document is entitled
Summary for the Chief Minister and
provides that:
Subject:
CIVIL LAW REFORMS
In
a meeting chaired by the Prime Minister of Pakistan on 04.02.2021 on
Progress
Review Meeting on Prime Minister's Priority Sectors (5) (Annex-
A), it was
desired by the Prime Minister that the Punjab should consider
making laws on
the analogy of the federal laws titled as the Letters of
Administration and
Succession Certificates Act, 2020 (VI of 2020); the code
of Civil Procedure
(Amendment) Act, 2020 (VII of 2020); and, the
Enforcement of Women's Property
Rights Act, 2020 (XII of 2020). It has
been desired by the law Minister that
this Department should initiate
Summary for the Chief Minister to comply with
the directions of the Prime
Minister mentioned above.
2.
In view of the above, the drafts of the Punjab Letters of Administration and
Succession Certificates Ordinance, 2021; the Code of Civil Procedure
(Amendment) Ordinance, 2021; and the Punjab Enforcement of Women's
Property
Right Ordinance, 2021 are placed at Annex-B, C & D respectively.
3.
The Chief Minister may be pleased to allow that the Draft Ordinances may
kindly
be approved by the Cabinet through circulation in terms of sub-rules
(1) and
(5) of rule 33, read with clause (b) of sub-rule (1) of Rule 25 of the
Punjab
Government Rules of Business, 2011."
8. A reading of the summary to the Chief
Minister, set out above, would bring
forth two ineluctable conclusions. First
the summary was prepared pursuant to a
meeting chaired by the Prime Minister of
Pakistan on 04.02.2021 on Progress
Review Meeting of Prime Minister's Poverty
Sector. It further goes on to say that
the Prime Minister had desired that Punjab
(interestingly no other province was
mentioned) should consider making laws on
the analogy of the federal laws which
include the Amendment Ordinance. It seems
that at the federal level the C.P.C.
(Amendment Act) 2020 had already been
promulgated and the Amendment
Ordinance is a mirror image of that law. The
summary then states that "it has been
desired by the Law Minister that
this department should initiate summary for the
Chief Minister to comply with
the directions of the Prime Minister mentioned
above." This part of the
summary gives rise to the challenge based on the rule that
the act of
promulgation of the amendments suffers from the vice of dictation and
therefore
must be struck down. The summary seeks the permission of the Chief
Minister to
have the draft ordinance approved by the Cabinet through circulation in
terms
of sub-rules (1) and (5) of rule 33 read with clause 'b' of sub-rule (1) of
rule
25 of the Rules of Business. Another aspect which comes out starkly from a
reading
of the summary is that draft ordinance had already been sent to Punjab
by Federal
Government and which draft ordinance had been attached with the
summary for
approval by the Chief Minister and consequently by the Cabinet.
Plainly, no
deliberation took place at any level with the Punjab Government or
internally
within the department which was tasked with initiating the summary
or the draft of
the ordinance. This summary is dated 4.2.2021 and is sent by
the Secretary Law,
Govt. of the Punjab. It was countersigned by the Chief Secretary
on 5.2.2021. The
next document is dated 6.2.2021 and has been issued by the
Secretary to Chief
Minister and states as follows:
"6.
Chief Minister has seen and, in view of the exigency, is pleased to desire that
the instant matter may be placed before the Provincial Cabinet, through
circulation, for its consideration/ approval."
9. It can be seen that the Chief Minister on
6.2.2021 decided that the matter be
placed before the Provincial Cabinet
through circulation for its consideration /
approval. The Chief Secretary
countersigned this document on 7.2.2021. Now we
come to another document which
too is entitled "Summary for the Chief Minister".
It says that the
"Provincial Cabinet has approved the draft ordinance placed in
duplicate at
Annexure A & B, Annexure C and D and Annexure E & F through
circulation". It further states that "at the moment, Provincial
Assembly of the
Punjab is not in session and Governor of the Punjab is
competent to promulgate the
subject ordinance in terms of Article 128 of the
Constitution". The most
conspicuous aspect of this document is that it is
also dated 4.2.2021. Reading the
three documents together presents a unique
situation. The summary for the Chief
Minister is initiated on 4.2.2021 which is
approved by the Chief Minister on
6.2.2021 and by the Chief Secretary on
7.2.2021. However, in another summary for
the Chief Minister, sent by the
Secretary Law, it has clearly been stated that on
4.2.2021 the Provincial
Cabinet had already approved the draft ordinance by
circulation. Despite
opportunities the learned A.A.G. was not able to reconcile the
glaring and
egregious conflict in these documents and this Court is constrained to
draw an
inference that the entire process was laced in with undue haste and without
following the procedural formalities. It was mechanically applied without a
robust
and inclusive decision-making process. It falls to be noted that the
culmination of
the process took place within less than a week in a matter
having far-reaching
consequences.
Ordinance making power:
10. The power to promulgate ordinance vests in the
Governor by Article 128 of
the Constitution. In essence, it is a legislative
power but in actuality it is exercised
by the political executive. This is a
contradiction in terms but this issue will not
detain us any further as it does
not arise in the present proceedings. What is
relevant to be considered is that
the power to promulgate an ordinance by the
Governor is subject to the
conditions that the Provincial Assembly is not in session
and he is satisfied
that the circumstances exist which render it necessary to take
immediate
action. Closely tied in with this concept is the principle that under a
written
constitution the courts. duty is to see that the constitution is not infringed
and is preserved inviolate (The Bribery Commissioner v. Ranasinghe (1964) 2 All
E.R. 785, 790). Although ordinance-making power is legislative but it must not
be
forgotten that the power vests in the political executive. Therefore it
should be
judged by the tests applicable to determine the validity of executive
acts. The
challenge to the Amendment Ordinance is therefore bifurcated into
various
grounds, the first of which entails that since the ordinance is an
executive act and
so its legality or otherwise must be considered on the
touchstone of the principles
of administrative law relating to executive acts
such as illegality, irrationality and
procedural impropriety. I shall proceed
to determine firstly whether the political
executive of the province was compliant
of the procedural formalities which must
precede the promulgation of an
ordinance and for the purpose reliance will be
placed on the Rules of Business.
While doing so, we will have to bear in mind the
oft-quoted words of Lord
Brightman in Chief Constable v. Evans (1982) All ER
141, 154 that:
"Judicial
Review is concerned not with the decision, but with the decision-
making
process. Unless that restriction of the power of the court is
observed, the
court will, in any view, under the guise of preventing the
abuse of power, be
itself guilty of usurping power."
11. It was stated by Chief Justice John Marshall
in Marbury v Madison (1803) 5
US 137 that "to what purpose are powers
limited, and to what purpose is that
limitation committed to writing, if these
limits may, at any time, be passed by those
intended to be restrained? The
distinction between a government with limited and
unlimited powers is
abolished, if these limits do not confine the persons on whom
they are imposed,
and if acts prohibited and acts allowed, are of equal obligation.
12. The constitutional scheme envisages a limited
government. It follows
indubitably that there are spheres of powers delineated
for each organ of the
Federal as well as the Provincial Governments to operate.
They cannot transgress
those spheres and encroach upon other areas of activity.
This is the cardinal feature
of the Constitution and illuminates the meaning
and effect of this centrality.
13. The
Rules of Business 2011 have been enacted by virtue of powers conferred
by Article
139 of the Constitution. Prior to an advice by the Chief Minister to the
Governor for an ordinance to be promulgated, there are certain essential steps
which are required to be followed under the Rules of Business for a draft
ordinance
to be made into law. An elaborate procedure has been laid down which
not only
acts as a bulwark against abuse but also ensures that sufficient
consultation
precedes the making of a law. The summary for the Chief Minister
dated 4.2.2021
drafted by the Secretary Law and Parliamentary Affairs
Department refers to the
approval of the draft ordinance by the Cabinet through
circulation in terms of sub-
rule (1) and sub-rule (5) of Rule 33 read with
clause 'b' of sub-rule (1) of Rule 25 of
the Rules of Business. Firstly, therefore,
we will advert our attention to these
rules.1
14. Clause 'b' of sub-rule (1) of Rule
25 provides for the disposal of business by
the Cabinet by circulation. It
states that cases referred to the Cabinet shall be
disposed of inter alia by
circulation amongst the Ministers and by discussion at a
meeting of Committee
of the Cabinet. Thus, while the disposal of business by the
Cabinet could be at
a meeting of the Cabinet, in case it is to be done by circulation,
the twin
conditions of circulation amongst the Ministers as well as a discussion at a
meeting of a Committee of the Cabinet must take place simultaneously. No
document was produced before this Court which showed a compliance of
sub-
clauses 'b' and 'c' of sub-rule (1) of Rule 25 of the Rules of Business.
For the
purpose, the Cabinet may constitute Standing or Special Committees of
the Cabinet
and may assign to each a class of cases or a particular case.
Sub-rule (2) envisages
that unless the Cabinet authorizes otherwise, the
decision of a Committee of the
Cabinet shall be ratified by the Cabinet.
Therefore, Rule 25 contains an entire
procedure for the disposal of business by
the Cabinet by circulation and as
explicated, it entails not only circulation
amongst the Ministers but also discussion
at a meeting of a Committee of the
Cabinet. Obviously this is to bridge the gap left
by actual discussion at a
meeting of the Cabinet and in case a business is to be
disposed of by
circulation, the intention is that at least a discussion must take place
at a
meeting of the Committee of the Cabinet. This procedure has gone abegging in
the instant case and the matter was circulated amongst the Ministers and upon
its
approval it was sent to the Chief Minister for advising the Governor.
15. Rule
26 of the Rules of Business, 2011 deals with the manner of submission
of cases
to the Cabinet. It lays down an extensive procedure which must precede
the
submission of the cases to the Cabinet and is based on time honoured rule that
decision must not be taken in haste, for enactment of laws has far reaching
consequences on the lives of people and therefore must be preceded by extensive
consultative process. 2Rule 26 states that for submission of a case
to the Cabinet,
the Secretary of the concerned department shall transmit to the
Chief Secretary a
concise and lucid memorandum of the case giving the
background and relevant
facts, the points for decision and the recommendations
of the Minister concerned.
Also by sub-rule (3), a summary for approval in
principle of the proposed
legislation or for approval of a bill or an ordinance
shall also contain the salient
features of such legislation. More importantly,
by sub-rule (4) where a case
concerns more than one department, the summary
shall not be forwarded to the
Cabinet unless the case has been considered by
all the concerned departments. In
the present case, not only the Amendment
Ordinance was part of the summary but
also other laws in respect of which the
relevant departments had not been consulted
and so there was no consideration by
those departments priorly. Sub-rule (6) of
Rule 26 clearly provides that all
ordinances shall be submitted to the Cabinet after
they have been vetted by Law
and Parliamentary Affairs Department. Thus, the
entire Rule 26 has a purpose
and that purpose is for a meaningful and extensive
consultation process to be
undertaken punctiliously not only by the relevant
departments but also that any
draft of a bill or an ordinance must be vetted by the
Law and Parliamentary
Affairs Department. None of the ingredients of Rule 26
seem to have been
complied with in the instant matter. Not only that the summary
was not
considered by the concerned departments but also the laws meant to be
promulgated were not vetted by the Law and Parliamentary Affairs Department
which in fact acted as a post office by complying with the directions issued by
the
Prime Minister without taking into consideration the procedures envisaged
by the
Rules of Business to be valid in all case and especially while
promulgating an
ordinance.
16. 3Rule 27 relates to the procedure
regarding Cabinet decision by circulation.
By clause 'a' of sub-rule (2) of
Rule 27, in the event of full agreement to the
recommendation in the summary,
the Chief Secretary shall treat it as a Cabinet
decision and proceed further in
terms of rule 28(12), which is to the following
effect:
"28(12)
The Chief Secretary shall circulate to the Ministers, a copy of the record
prepared under sub-rule (11) as approved by the Chief Minister."
17. The above rule states that the Chief Secretary
shall circulate to the Ministers
a copy of the record prepared under sub-rule
(11) as approved by the Chief
Minister. Sub-rule (11), in turn, obliges the
Chief Secretary to attend all meetings
of the Cabinet and prepare a brief
record of the discussion and a record of the
decisions without any statement or
reasons thereof. Once again, no document was
produced which would show clearly
that the Chief Secretary proceeded to fulfill his
obligations cast by Rule 28(11)
and (12). Plainly, a reference to a brief record of the
discussion in the
matters of disposal of business by circulation has a nexus to the
discussion at
a meeting of a Committee of the Cabinet and correlating the two
would clearly
show the importance of such a discussion by the Committee of the
Cabinet.
18. From the discussion above it is clear that
decisions by circulation by the
Cabinet must be based on certain prior actions
and cannot be simply done on a
summary prepared by the Secretary Law but must
be compliant of the procedure
laid down in Rules 25, 26 and 27 read
cumulatively. The role of the Chief Secretary
in this procedure is of pivotal
importance and cannot be downgraded. In the instant
matter, no document was
produced which would show that the Chief Secretary
performed his functions
under the Rules of Business while circulating the
Amendment Ordinance for
approval not only by the Ministers but also by the Chief
Minister for onward
transmission to the Governor to be enacted as the law.
19. Central to the present discussion are two more
rules viz. Rules 33 and 35 of
the Rules of Business. 4Rule 35
provides that the provisions of Rule 33 shall
mutatis mutandis apply where the
proposed legislation is an ordinance. This brings
us to 5Rule 33
which contains crucial aspects with regard to any proposed
legislation. It says
that the department administratively concerned shall be
responsible for
determining the contents of the proposed legislation, for consulting
the
concerned departments where necessary and for obtaining the approval in
principle of the Cabinet to the issue involved before asking Law and
Parliamentary
Affairs Department to give legal shape to the bill (read as
ordinance for our
purposes by virtue of the mandate of Rule 35). Thus, what comes
out starkly from a
reading of sub-rule (1) of Rule 33 is that the proposed
legislation has to be initiated
by the department concerned which shall obtain
the approval of the Cabinet to the
issue involved before asking the Law and
Parliamentary Affairs Department to give
legal shape to the bill. Therefore,
even if a direction had been given by the Prime
Minister, what was to be done
by virtue of Rule 33 was for the concerned
department to obtain the approval of
the Cabinet regarding the issue and that
approval was merely for the purposes
of seeking directions to initiate the proposed
legislation. Thereafter the
matter should have been referred to the Law and
Parliamentary Affairs
Department for giving legal shape to the bill. What was done
in the instant case
was that the drafts of the laws received from the Federal
Government were sent
to the Chief Minister in a summary for approval and
thereafter placed before
the Cabinet to be approved by circulation. The first feature
of rule 33 is that
it conforms to the constitutional principle of autonomy to inhere in
the
Province and second for an independent consultation to be undertaken in any
proposed legislation and a prior approval of the Cabinet must be obtained
regarding
initiation of such a process. Concurrently the role of Law and
Parliamentary Affairs
Department has been settled by sub-rule (1) of Rule 33
while clearly stating that the
said department shall give legal shape to the
bill. Sub-rule (3) further provides that
while referring the legislation to the
Law and Parliamentary Affairs Department
after it has been approved in
principle by the Cabinet, the concerned department
shall send a memorandum
indicating the lines on which it is proposed to legislate.
The place with the
Law and Parliamentary Affairs Department occupies is
highlighted by sub-rule
(4) which provides that apart from giving shape to the draft
legislation, the Law and Parliamentary Affairs Department
shall advise the
department concerned if any legal requirements are to be complied
with as also to
advise whether the proposed law disregards or violates any of
the fundamental
rights conferred by the Constitution. It is thereafter that the
concerned department
shall submit the case including the advice of the Law and
Parliamentary Affairs
Department to the Cabinet.
20. 6Rule 20 enunciates that the
primary object of Law and Parliamentary
Affairs Department is consultation by
the other departments on matters relating to
substantive legislation, delegated
legislation, on the interpretation of substantive or
delegated legislation and
other matters delineated therein. Sub-rule (3) enacts
clearly that the Law and
Parliamentary Affairs Department is not, in respect of
legislation, an
originating office and its proper function is to put into correct legal
form
the proposed legislation. The bills for the law to be enacted shall be
initiated
by the department concerned which is obliged to consult the draft
legislation with
the Law and Parliamentary Affairs Department. It therefore
seems plain that the
Rules of Business have spelt out the function of the Law
and Parliamentary Affairs
Department and the initiation of legislation is not
one of its functions. No
legislation can be originated from the office of the
Law and Parliamentary Affairs
Department.
21. From the above narration, it indubitably
follows that the procedural
formalities for an ordinance to be issued and
promulgated have been put to the
wayside while enacting the Amendment
Ordinance. These rules and in particular
Rules 33 and 35 encapsulate the
concept of provincial autonomy in the matter of
promulgation of an ordinance.
Any direction by the Prime Minster or by the Federal
Government offends the
sovereignty of Punjab in the law-making process and is
ultra vires on the
principle of illegality and dictated exercise of powers. Mr.
Shehzad Shaukat,
Advocate, amicus curiae mounted this argument to contend that
the Amendment
Ordinance be struck down as having been passed under dictation of
the Prime
Minister/Federal Government. However, in my opinion, the Amendment
Ordinance is
without lawful authority on the twin grounds of illegality and
dictation.
Firstly, the Amendment Ordinance was promulgated under the dictated
exercise of
powers and secondly, Punjab failed to comply with the procedure set
out in the
Rules of Business and so committed an illegality which renders the
executive
act of promulgating the ordinance as ultra vires.
22. Rules of Business are constitutional rules and
occupy a pedestal higher than
ordinary statutory rules formulated under
delegated exercise of power. They have
their provenance in Article 139(3) of
the Constitution. The rightful place of those
rules in the constitutional
scheme of conduct of business of a Provincial
Government has, eruditely, been
brought out by Saqib Nisar J. in his seminal
opinion Mustafa Impex v.
Government of Pakistan (PLD 2016 SC 808). (Though
the precedent concerned the
authority of the Federal Government to frame rules, its
holding applies, a
fortiori, to the Rules of Business made by a Provincial
Government). Saqib
Nisar, J., noted that:
" Article
90 envisages a parliamentary form of Government which is based on
decision
making by the Cabinet. To turn the Cabinet into such a rubber
stamp in pursuit
of decisions making by the Prime Minister to the exclusion
of his Cabinet would
violate the letter and spirit of our Constitution. That
would be to reduce a
cabinet form of government into a prime ministerial
one which is a concept
which is lien to the Constitution, as it stands at
present
" This
necessarily means that the concept of business Government includes not
merely
executive matters but also those which pertain to legislation "
23. The Supreme Court of Pakistan then went on to
proffer its binding opinion
on the importance of the Rules and the consequences
that flow from any violations
in their observance:
"50.
The importance of the Rules of Business cannot be understated within a
constitutional framework. Although, generally speaking, it is correct to state
that all rules are binding for, and in relation to, the powers thereby
conferred
on the Executive, this is especially so in the case of the Rules of
Business.
The concept of rules, as is obvious, is subsumed in subordinate or
delegated
legislation. It is an integral part thereof. All legislation is
binding and should
be acted upon. The Federal Government does not have the
prerogative to
follow, or not to follow, legislation, both primary as well as
secondary or
delegated, in its discretion. The authority to frame rules is
normally
conferred by an Act of Parliament. In the case of the Rules of
Business this
authority flows from the Constitution itself. As noted above,
Clause (3) of
Article 99 makes it mandatory for the Federal Government to make
rules
 which cover two related sub-fields; firstly, for and in relation to the
allocation of the business of the Government and secondly, for transacting
the
said business. This clause is to be read as essentially ancillary to the
overarching concept of the rule of law. The Constitution confers vast powers
on
the Government for the transaction of executive business. There is no
reason to
suppose, or believe, that the framers of the Constitution intended,
in
disregard of the explicit language employed, that the Federal Government
could,
in its discretion, either follow, or not follow, the provisions of the
Rules of
Business. The framer of rules is as much bound by the content
thereof as anyone
else is subject thereto. These are basic precepts of
constitutional
interpretation. To allow the Executive to depart from the
language of the
Rules, in its discretion, would be to permit, and legitimize,
unconstitutional
executive actions. Quite independently of the above, there
is ample case law
stressing the importance of a structured exercise of
discretionary power. In
this case the discretionary executive powers have
already been fettered by the
Constitution. The framing of rules for this
purpose is inextricably linked to
the guided exercise of official power. The
following of the Rules of Business
is a salutary exercise intended to
enhance, and amplify, concepts of good
governance. We have no doubt that
it is mandatory and binding on the
Government, and so hold. A similar view
was taken by this Court in the case of
Ahmad Nawaz Shah (supra)..
" He
must establish that there is a sound and powerful reason why they should
not be
considered mandatory and binding. This principle applies with
redoubled force,
for and in relation to two sets of rules; firstly,
constitutionally mandated
rules i.e. the Rules of Business, and secondly,
rules framed under fiscal
enactments. Constitutionally mandated rules are
closely intertwined with the
concept of good governance for and in the
public interest. Allowing a departure
therefrom would be detrimental to
open and transparent forms of governance. If
a government department
admits that although it has violated explicit
provisions of the rules, its
violation should be condoned by treating the
breach as non-actionable
merely on the ground of its supposedly being
directory, then surely serious
questions arise in relation to the good faith of
the department. In each and
every case the presumption of law would be that the
rules are mandatory and
should be observed and followed. If, and only if, a
compelling public
interest is established as a reason for non-compliance with
the rules i.e.
other than inadvertence, or negligence, or incompetence then,
and only then,
can the court consider whether or not to condone the breach in
the
observance of the rules "
24. The principles that may be culled out of a
reading of Mustafa Impex are
firstly, that Rules of Business are constitutional
rules and operate within a
constitutional framework and, second, it is
mandatory for the Federal as well as the
Provincial Government to follow their
mandate and no discretion lies with either of
them to disregard these Rules. If
the binding nature of these Rules is an immutable
concept, then what follows
indubitably is the rule of illegality which renders all
acts which flow out of
such illegality to be null and of no effect.
 25. In the context of judicial review on the
principle of administrative law
regarding an act to be illegal which is brought
about by dictation, suffice to refer to
the treaties De Smith's Judicial Review
(seventh edition) and the following
statement which aptly applies to the
present case:
"An
authority entrusted with a discretion must not, in the purported exercise of
its discretion, act under the dictation of another body or person. In at least
two Commonwealth cases, licensing bodies were found to have taken
decisions on
the instructions of the heads of government who were
prompted by extraneous
motives. But, as less colourful cases illustrate, it is
enough to show that a
decision which ought to have been based on the
exercise of independent judgment
was dictated by those not entrusted with
the power to decide ."
" Authorities
directly entrusted with statutory discretions, be they executive
offices or
members of distinct tribunals, are usually entitled and are often
obliged to
take into account considerations of public policy, and in some
contexts the
policy of a minister or of the Government as a whole may be a
relevant factor
in weighing those considerations, but this will not absolve
them from their
duty to exercise their personal judgment in individual cases,
unless explicit
statutory provision has been made for them to be given
binding instructions by
a superior "
Federalism and
Republican form of Government:
26. It may be stated, as a prefatory, that this
topic and the need to advert to these
concepts has arisen out of the contents
of the 'Summary for the Chief Minister'
dated 04.02.2021 and more specifically
in its reference to the "directions of the
Prime Minister" to be
complied. Such, direction, followed without demur by
Punjab, reflects a
deep-seated servility which runs counter to the grand
constitutional scheme
with provincial autonomy as its centerpiece. This direction
has been held to be
unlawful on the ground that it was dictated by those not
entrusted with the
power to decide. However, by seeking footing in the
constitution.s text, it is
plain that act of Punjab in complying with the direction also
offends the basic
features of federalism and provincial sovereignty.
27. "Our
Constitution" so observed Muhammad Haleem CJ in Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416), "envisages democracy as ethos
and a
way of life in which equality of status, of opportunity, equality before
law and
equal protection of law obtains. It has its foundation in
representation; it is not a
system of self government, but a system of control
and the limitations of
government. A democratic polity is usually identified by
the manner of selection of
its leaders and by the fact that the power of the
government functionaries is
checked and restrained. In a democracy the role of
the people is to produce a
government and therefore the democratic method is an
institutional arrangement for
arriving at political decisions in which
individuals acquire the power to decide by
means of a competitive struggle for
the people's vote."
28. The Constitution envisages a limited
government which means that it has put
in place a system of restraints and
limitations to constrain its power and to define
its periphery. Ours is a
representative democracy in which the people act not
directly but through their
representatives. This system of government is called
republicanism. Thus, a
republic is a democracy but a representative democracy.
One of the most
cherished principles regarding a republic was enunciated by U.S
Supreme Court
in McCulloch v. Maryland (1819) 17 US 316 where it was held that
"in a
republic the government is emphatically and truly a government of the people.
In form and substance it emanates from them and for their benefit." In a
later case
the US Supreme Court observed that "in a republican government,
like ours,
political power is reposed in representatives of the entire body of
the people." This
concept was further elaborated by James Madison in the
Federalist No.39 in the
following words:
"A
republic is a government which derives all its powers directly or indirectly
from the great body of the people and is administered by persons holding
their
offices during pleasure for a limited period or during good behavior. It
is
essential to such a government that it be derived from the great body of
the
society, not from an inconsiderable proportion or a favoured class of it It
is
sufficient for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that they hold
their appointments by either of the tenures just specified ."
29. Article 1 lays the architecture of our
Constitution. Pakistan is a 'Federal
Republic' and is comprised of federating
units set out in clause (2) of Article 1. In
describing Pakistan as a 'Federal
Republic', the Constitution lays down the most
fundamental feature of our
Constitution which must be preserved inviolate and is
immutable. These words
resonate the twin concepts of federalism and Republican
form of government
which are imbued in our Constitution. They are the motifs of a
liberal
democracy on which our Constitution is predicated. "Republican from of
government presupposes that neither the state nor the Federal Government could
undermine ultimate popular control over certain state officials, their
qualifications,
and the state law-making process." (Gregory v. Ashcroft,
501 US 452 (1991). John
F. Manning, a constitutional academician, in his
article, Federalism and the
Generality Problem in Constitutional Interpretation,
2009 Harvard Law Review
2004, noted that:
"What
makes the new federalism decisions so interesting is that the court seeks
the
founder's decisions not in the meaning of any discrete clause, but in the
overall system of government they adopted in the document .Taking all of
those
provisions together, the Court ascribes to the document as a whole a
general
purpose to preserve a significant element of state sovereignty."
30. Article 1 in our Constitution is the
'Guarantee Clause' which is equivalent to
Article IV, of the American
Constitution which provides that: "United States shall
guarantee to every
State in this Union a Republican form of Government". Read in
the backdrop
of structural building blocks of the constitution, this not only implies
a republican
form of government at the federal level but ensures the same form and
guarantee
to trickle down to the provinces as well so that people are able to
participate
in the processes of their own governance. The provincial governments,
in a
representative democracy, are elected by the electorate separately and under
the
constitution, have independent and separate functions to perform. Therein
lies the
basic rule regarding provincial autonomy as these governments, after
being elected,
serve the popular will of the people and act as their
representatives. They are
beholden by their oath to preserve the autonomous
character of their functionality
in all matters which the constitution vests in
their domain. The most crucial aspect
of these functions relates to law-making
which tends to leave an indelible imprint
on the lives of people. It can
neither be superimposed nor dictated by the federal
government. Such commands
are fundamentally incompatible with our
constitutional system of dual
sovereignty. The direction by the Prime Minister
trenched upon provincial
sovereignty and breached the guarantee contained in
Article 1. Laurence H.
Tribe in his seminal work, American Constitutional Law
(Third Edition-Volume
One), articulates the guarantee clause in the following
manner:
"Although
the "tacit postulates" of the constitutional plan, as explicated in a
decision like Printz, may well be as sound a basis for doctrine as any
express
provision of the Constitution can be, there is an express provision
that might
plausibly be invoked in support of the proposition that the
Constitution
recognizes in the National Government a duty, running directly
"to every
State in this Union" rather than to individuals, to respect the state's
most fundamental structural choices as to how its people are to participate in
and shape the processes of their own governance: Article IV, and 4,
expressly
provides that the "United States shall guarantee to every State in
this
Union a Republican Form of Government": When Justice O'Connor
observed, in
her dissent in Federal Energy Regulatory Commission v.
Mississippi, that
"federalism enhances the opportunity of all citizens to
participate in
representative government, "and when she quoted Alexis de
Tocqueville's
remarks that" "the love and the habits of republican
government in
the United States were engendered in the townships and in
the provincial
assemblies,'" and that" 'this same republican spirit (is)
engendered
and nurtured in the different States'" she appears to have
identified an
important link between the tacit postulate of state sovereignty
and the textual
guarantee of republican government.
"The
"guarantee" in the Article IV has a dual nature with respect to state
sovereignty: the clause can be read both as a restraint on the range of
permissible state government forms, and as a protection from exercises of
federal power that would either eliminate the "republican" nature of
any
particular state government or render "non-republican" a state's
choice of a
particular structure for governance. The history of the
Constitutional
Convention and ratification debates indicates that the Clause's
purpose
includes both facets, although the former aspect has usually received
more
attention. Determining the essential elements of "republican"
forms a
government is certainly no easy task, but we are not without guidance.
Madison explained that the Guarantee Clause represented a rejection of
"aristocratic or monarchical innovations." Other authority indicates
that the
Constitution's assurance of republican forms also presupposed that
neither
the states nor the federal government could undermine ultimate popular
 control over certain state officials, their qualifications, and the state
lawmaking process --- assuring a measure of democracy and independence
vital to
maintaining our federalism's intended division of authority. At the
same time,
preserving federalism's capacity for institutional innovation. A
definition of
"republican" forms that rested solely on historical
understandings or
traditional arrangements would suffer from the same
flaws as National League of
Cities. But whatever the interpretive
difficulties, the text of the
Constitution provides a compelling justification
for the Court to use Article
IV as a basis for marking the outer limits
inviolate spheres of state autonomy.
Enforcement of the Guarantee Clause
would ensure that independent status; some
revenue with which to operate;
some sphere of autonomous lawmaking,
law-enforcing, and dispute
resolving competence; and some measure of choice in
selecting a political
and administrative structure."
31. Thus the essence of self-government is how
people will represent themselves
and take part in their own governance.
32. This has been described by Justice Kennedy (US
Supreme Court) as
"attempts to alter the Federal balance" (by
Congress), U.S v. Lopez 115 S.ct.1624
(1995). In the trite words of Justice
Kennedy:
"There
is irony in this, because of the four structural elements in the Constitution
just mentioned, federalism was the unique contribution of the Framers to
political science and political theory. Though on the surface the idea may
seem
counterintuitive, it was the insight of the Framers that freedom was
enhanced
by the creation of two governments, not one. "In the compound
republic of
America, the power surrendered by the people is first divided
between two
distinct governments, and then the portion allotted to each
subdivided among
distinct and separate departments. Hence a double
security arises to the rights
of the people. The different governments will
control each other, at the same
time that each will be controlled by itself."
The Federalist No.51.
"The
theory that two governments accord more liberty than one requires for its
realization two distinct and discernable lines of political accountability: one
between the citizens and the Federal Government; the second between the
citizens and the States. If, as Madison expected, the federal and state
governments are to control each other, the Federalist No.51, and hold each
other in check by competing for the affections of the people, the Federalist
No.46, those citizens must have some means of knowing which of the two
governments to hold accountable for the failure to perform a given function.
This Court has noted, "Federalism serves to assign political responsibility,
not to obscure it." Where the Federal Government to take over the
regulation of entire areas of traditional state concern, areas having nothing
to do with the regulation of commercial activities, the boundaries between
the
spheres of federal and state authority would blur and political
responsibility
would become illusory. The answerable to the citizens is more
 dangerous even
than devolving too much authority to the remote center
power."
For
the reasons, it would be mistaken and mischievous for the political branches
to
forget that the sworn obligation to preserve and protect the Constitution
in
maintaining the federal balance is their own in the first and primary
instance.
In the Webster-Hayne Debates of last century, and in the debates of
the 1960's
over the Civil Rights Acts, some Congresses have accepted
responsibility to
confront the great questions of the proper federal balance in
terms of lasting
consequences for the constitutional design. The political
branches of the
Government must fulfill this grave constitutional obligation
if democratic
liberty and the federalism that secures it are to endure.
At
the same time, the absence of structural mechanisms to require those officials
to undertake this principal task, and the momentary political convenience
often
attendant upon their failure to do so, argue against a complete
renunciation of
the judicial role. Although it is the obligational design, the
federal balance
is too essential a part of our constitutional structure and
plays too vital a
role in securing freedom for us to admit inability to
intervene when one or the
other level of Government has tipped the scales
too far.
33. In Lopez, federalism was aptly described as
one of the structural elements in
the Constitution as also that Judiciary plays
a significant role in preserving the
federal balance' and its legitimacy is
undoubted. (see for example, 'The Most
Wonderful Work', Our Constitution
Interpreted, by Thomas E. Baker).
34. The Canadian judiciary has forthrightly taken
on the role of the arbiter of
federalism. "It is the high duty of this
Court to insure that the Legislatures do not
transgress limits of their
constitutional mandate and engage in the illegal exercise
of power (Amax Potash
Ltd. v Saskatchewan, 2 S.C.R. 576, 590 (1977). See also
K.E. Swinton, the
Supreme Court of Canada and Canadian federalism: the Laskin-
Dickson years
57-58, 65-68 (1990).
35. The emphasis must be on individual rights in a
Federal State (based on the
spirit of federalism) and to treat provinces. rights
largely as mirror images of
individual rights. This notion of a federal
republic was stated by James Madison
(the father of U.S Constitution) in the
Federalist No.46 (and relied upon
consistency in case law) in the following
terms:
"the
federal and State governments are in fact but different agents and trustees of
the people, constituted with different power, and designed for different
purposes." "most of a state's rights. must, in at least a loose
sense, be
derived from the rights of its citizens "
Later, it was succinctly put forth in one
of the cases by the U.S. Supreme Court:
"the
Constitution does not protect the sovereignty of States for the benefit of the
States or state governments as abstract political entities, or even for the
benefit of the public officials governing the States. To the contrary, the
 Constitution divides authority between federal and state governments for the
protection of individual. [New York v United States, 505 U.S 144 (1992)]"
36. In New York, State officials consented to the
enactment and the above
discussion in the majority opinion appeared in response
to the question that how
can a federal statute be found an unconstitutional
infringement of state sovereignty
when state officials consented to it? The
rule was laid down emphatically that the
constitutional guarantee of state
sovereignty was closely tied in with individual
rights and was meant to be for
their protection and not for the benefit of state
governments. The dicta in New
York applies on all fours to our constitutional
scheme and so it can be said
without any fear of contradiction that provincial
autonomy is primarily
anchored in individual rights which must be protected as one
of the fundamental
rights conferred by the constitution. It is a penumbra which
springs from the
federal structure of the constitution and the republican form of
government.
37. Tribe in his American Constitutional Law has
captured the issue thus:
"Richard
Stewart has described how claims of state sovereignty might be
grounded in
individual rights. Professor Stewart identifies four features of a
decentralized federal structure which can be stated as values an individual
would wish to further: the greater accuracy with which a local
decisionmaker
can operate as a utilitarian calculator of costs and benefits;
the greater
protection of liberty which each state's decentralized
decisionmaking affords
by making it harder for any one group to seize total
national power, the
greater degree of community fostered by the opportunity
for political
participation that decentralization makes possible, and the
greater diversity
which decentralization fosters..
38. Thus the constitutional balance of federal and
provincial powers would be
upset if there are no restrictions on actions by the
Federal Government which
threatens the separate existence and vitality of
provincial and local government
which play an important role in the
constitution's architecture.
39. Let us now allude to some of the leading cases
in American history regarding
jurisprudence on state sovereignty and their
rights. These opinions bear a
remarkable similarity to our structural framework
and their use as precedents lends
support to the foundations on which our
constitution envisions Pakistan to be
nurtured as a Federal Republic. Many of
the concepts espoused in these precedents
like preserving federal balance and
state sovereignty are applicable, a fortiori, to
our constitutional
dispensation in order to maintain the balance which the founding
fathers were
striving to strike. A strong national government is indeed necessary
yet it has
to be balanced by a robust provincial autonomy so that the rights of
individuals in the provincial sphere are ably protect and granted to them to be
enjoyed to the fullest extent. For, we must bear in mind the indubitable fact
that our
constitution delineates different fields within which the respective
legislatures i.e.
Parliament and provincial assemblies are empowered to
legislate and so within
these fields of activity, only the relevant legislature
may legislate and none else.
40. In Garcia v San Antonio Metropolitan Transit
Authority, 469, U.S 528
(1985), Justice Blackmun noted that the "States
unquestionably do retain a
significant measure of sovereign authority" and
that "State sovereign interests, then
are more properly prohibited by
procedural safeguards inherent in the structure of
the federal system than by
judicially created limitations on federal power."
41. The next two cases rooted the
anti-commandeering principle firstly in
American jurisprudence. This principle,
judicially evolved, protects against federal
commandeering of State
legislatures. This is precisely what happened in the case in
hand which can be cited
as classic example of federal commandeering of provincial
law-making and
complied by Punjab mechanically. By so doing, Punjab not only
abdicated its
provincial authority but compromised individual rights which it was
obliged to
protect. It would have been a different matter perhaps, if Punjab, despite
Prime Minister's direction, had engaged in a deliberative process with
stakeholders
and the law had undergone an independent analysis regarding its
efficacy in Punjab.
These essential prerequisites, too, were brushed under the
carpet and the
Amendment Ordinance was issued with undue haste.
42. In New York v. United States, 505 US 144
(1992) the court held that
Congress could not commandeer State law-making
processes by forcing States to
regulate-whatever the substantive field might
be. The court ruled that:
"Whatever
might be the outer limits of State sovereignty, a core element of that
sovereignty was control over state lawmaking processes."
Further stated that:
"That
provision represented a threat to state sovereignty in past because, while
encouragement to states in the form of conditions on the receipt of federal
funds or threatened preemption, the direct compulsion to pass regulations or
otherwise exert sovereign lawmaking authority could, among other things,
cause
confusion among citizens as to which government officials were
responsible for
particular actions.. (at pp. 168-69 & 188).
43. Thus, lawmaking process was held to be a core
element of (provincial)
sovereignty which could not be infringed. As will be
seen later, our Constitution,
too, enumerates lawmaking process to be a core
element of provincial autonomy.
44. In Printz v. United States, 521 U.S 98 (1997),
the U.S. Supreme Court
announced that "the Federal Government may neither
issue directions requiring the
States to address particular problems, nor
command the States' officers, or those of
their political subordinations to
administer or enforce a federal regulatory
program."
45. A fuller grasp of the holding of the Court in
this case can be had by referring
to the articulations by Tribe in American
Constitutional Law. He says that:
"The
Court then turned to "the structure of the Constitution, to see, if [the
Court
could] discern among its 'essential postulates[s]' a principle"
controlling the
case before it. The Court began by reemphasizing its conclusion
in New
York v. United States: "'the Farmers explicitly chose a
Constitution that
confers upon Congress the power to regulate individuals, not
States'". A
state's Government, the Court emphasized, is accountable to
its own
 citizens, and separation of federal and state governments "is one
of the
Constitution's structural protections of liberty": "The power
of the Federal
Government would be augmented immeasurably if it were able to
impress
into0 its service and at no cost to itself - the police officers of the
50 States":
In response to Justice Stevens' reliance in dissent on the
Necessary and
Proper Clause as justifying the congressional enactment at issue,
Justice
Scalia focused on that clause's use of the word "proper" and
quoted from
New York: "'[E]ven where Congress has the authority under the
Constitution
to pass laws requiring or prohibiting certain acts, it lacks the
power directly
to compel the States to require or prohibit those acts."
Turning
finally to the Court's own precedents, Justice Scalia highlighted both the
Court's warning in FERC v. Mississippi that the Court had "never
sanctioned
explicitly a federal command to the States to promulgate and enforce
laws
and regulations," and New York's holding that Congress "' may
not compel
the States to enact or administer a federal regulatory
program"'. Justice
Scalia found unpersuasive the government's efforts to
distinguish the Brady
Act from the "take title" provisions
invalidated in New York. The
government argued for a distinction between
impermissible congressional
efforts to commandeer the states by requiring them
to make law and what
the government argued were permissible efforts simply to
require state and
local officials to provide "limited, non-policymaking
held in enforcing that
law": The Printz majority found the proffered line
as difficult to discern as
"the line that separates proper congressional
conferral of Executive power
from unconstitutional delegation of legislative authority
for federal
separation of powers purposes". The Court doubted whether any
such line
could be drawn with clarity, for any choice by a CLEO as to what
constituted "reasonable efforts" in
conducting a background search under
the
Brady Act would require the making of policy, and the Court would be left
"fall[ing] back upon a line of 'not too much policymaking'". The
Court,
however, wanted a clear, nonbalancing approach: "How much is too
much is
not likely to be answered precisely; and an imprecise barrier against
federal
intrusion upon state authority is not likely to be an effective
one."
46. Relying upon past precedents, the Court in New
York reiterated that it had
never sanctioned a federal command to the States to
promulgate and enforce laws.
Also that a State's government was accountable to
its own citizens and separation
of federal and state government was one of the
Constitution's structural protections
of liberty. This, in turn, is of the
essence of a representative and responsible
government. Unfortunately, these
principles were dis-applied by Punjab in this case
and a multi-layered and
multi-faceted tapestry of interwoven sources and principles
ranging from
federalism to provincial autonomy were appallingly enfeebled in the
process.
47. Our Constitution has placed a number of
constraints on the Federal
Government and the Parliament lest they may not
trample upon provincial
autonomy and disregard the principles of federalism on
which our Constitutional
structure stands. In McCulloch v. Maryland 17 U.S. (4
Wheaton) 316 (1819), Chief
Justice John Marshall (US Supreme Court) said this
about sovereignty:
 " But
all legislative powers appertain to sovereignty. The government which has
a
right to do an act, and has imposed on it, the duty of performing that act,
must, according to the dictates of reason, be allowed to select the means;
and
those who contend that it may not select any appropriate means, that
one
particular mode of effecting the object is expected, take upon
themselves the
burden of establishing that exception.
In
America, the powers of sovereignty are divided between the government of
the Union, and those of the states.
They are each sovereign, with respect to
the objects committed to it, and
neither sovereign, with respect to the objects
committed to the other..."
48. There is a federal-province hierarchy which
can be gleaned out by a reading
of the Constitution. It spells out restrictions
that are crucial in preserving the
overall constitutional structure, and
reinforces the Federal balance.
Provincial autonomy in
our Constitution:
49. Federalism has been recognized as one of the
salient features of the
Constitution. This view can be traced to a cluster of
judgments by the superior
courts of Pakistan and lastly reconfirmed in
Rawalpindi Bar Association v.
Federation (PLD 2015 SC 401). It would suffice to
refer to the observations of
Justice Sheikh Azmat Saeed where in paragraph 59
he noted that:
"Some
of salient features identified in the precedent cases include federalism,
parliamentary form of government, along with the Islamic independence of
essential fundamental rights "
50. These features of federalism are scattered
throughout the Constitution. The
principles have to be adhered by different
constitutional authorities, by the Federal
Government as well as provincials
governments as this would, in turn, engender
rule of law. We must bear in mind
that in a country governed by a written
constitution, the written constitution
is the rule of law. While the rule of law
underlies our entire Constitution in
particular, Articles 4 and 5 seem to embody the
essence of the rule of law. It
was observed by Kaikaus J. in Jamal Shah v. Election
Commission (PLD 1966 SC 1)
that rule of law prevents "the government from
taking any action in this
country from which there is no legal sanction and at the
same time bars the
legislature from creating an authority whose actions are not
subject to
law." The legislature cannot enact that whatever action a particular
person may take shall be immune from challenge. All persons exercising
authority
in Pakistan must do so only in accordance with law. In Ahmad Nawaz v.
Pakistan
(PLD 1998 Sindh 180) it was held that "Pakistan is a republic. In
this country, there
is government of laws and not men."
51. We will now begin an analysis of different
provisions in our Constitution
which embody the rule of provincial sovereignty
in matters of lawmaking and the
checks and balances contained therein. Article
97 defines the extent of executive
authority of Federation and provides that:
"97. Extent of executive authority
of Federation
 Subject
to the Constitution, the executive authority of the federation shall extend
to
the matters with respect to which [Majlis-e-Shoora (Parliament)] has
power to
make laws, including exercise of rights, authority and jurisdiction
in and in
relation to areas outside Pakistan:
Provided
that the said authority shall not, save as expressly provided in the
Constitution or in any law made by 1[Majlis-e-Shoora (Parliament)], extend
in
any Province to a matter with respect to which the Provincial Assembly
has also
power to make laws.
52. The command of Article 97 is categoric and
without equivocation. It says
that the executive authority of the Federation
shall extend to matters with respect to
which the Parliament has power to make
laws. There is a further command in the
proviso to Article 97 which prohibits
the executive authority of the Federation from
extending in any province to a
matter with respect to which the Provincial
Assembly has power to make laws.
This provision itself puts paid to a contrary
argument that the Prime Minister
or the Federal Government could have issued a
direction to Punjab in respect of
a matter regarding which the Provincial Assembly
has power to make laws. Civil
procedure and laws relating thereto is a matter with
respect to which the
Provincial Assembly of Punjab has power to make laws and on
this basis the
direction is ultra vires the constitutional mandate.
53. Part V contains the relations between
Federation and Provinces whose
Chapter 1 relates to the distribution of
legislative powers. Article 142 rests on the
essential role of the provinces in
our federal system of government and is the
source from which is invoked the
principle of provincial sovereignty as a limit on
Federal Government (or the
Parliament) regarding domestic powers and acts as a
constraint. Article 142
provides that:
"142.
Subject-matter of Federal and Provincial laws. Subject to the Constitution-
--
(a)
[Majlis-e-Shoora (Parliament)] shall have exclusive power to make laws with
respect to any matter in the Federal Legislative List;
(b)
Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to
make
laws with respect to criminal law, criminal procedure and evidence;]
(c)
Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora
(Parliament) shall not, have power to make laws with respect to any matter
not
enumerated in the Federal Legislative List;]
(d)
Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with
respect to all matters pertaining to such areas in the Federation as are not
included in any Province]."
54. Thus, the subject of Federal and Provincial
laws has been delineated in
Article 142 which sets out the boundaries within
with the Parliament or the
Provincial Assemblies may operate and have the power
to make laws. There is no
quarrel, as adumbrated, that the Parliament does not
have power to make laws in
respect of civil law and civil procedure which is
exclusively within the domain of
the Provincial Assembly. That is the reason
why the Prime Minster did not choose
to extend the operation of the laws within
the federal territory to Punjab as well and
chose to issue a direction to
Punjab to enact similar laws in the Province of Punjab
as well. Clause 'c' of
Article 142 is couched in prohibitory terms and restrains the
Parliament from
exercising any power to make laws with respect to any matter not
enumerated in
the Federal Legislative List. There could not be a clearer command
in the
Constitution to the Parliament to abstain from exercising its law-making
power
to matters within the provincial domain. Doubtless, the command of the
Constitution must be followed and it would be tantamount to circumventing that
command if what cannot be achieved directly is sought to be achieved indirectly
by
issuing a direction to the province to be complied with.
55. Article 147 confers power on the provinces in
certain circumstances and with
the consent of the Federal Government to entrust
either conditionally or
unconditionally to the Federal Government or its
officers, functions in relation to
any matter to which the executive authority
of the province exists provided that it
has to be ratified by the Provincial
Assembly within sixty days. Article 149 may
aptly be described as the supremacy
clause which defines the hierarchy of
federalism which is so essential for the
federal republic to sustain and exist. Article
149 provides that:
"149. Directions to Provinces in
certain cases
(1)
The executive authority of every Province shall be so exercised as not to
impede or prejudice the exercise of the executive authority of the
Federation,
and the executive authority of the Federation shall extend to the
giving of
such directions to a Province as may appear to the Federal
Government to be
necessary for that purpose.
(2)
* * * * * *
(3)
The executive authority of the Federation shall also extend to the giving of
directions to a Province as to the construction and maintenance of means of
communication declared in the direction to be of national or strategic
importance.
(4)
The executive authority of the Federation shall also extend to the giving of
directions to a Province as to the manner in which the executive authority
thereof is to be exercised for the purpose of preventing any grave menace to
the peace or tranquillity or economic life of Pakistan or any part thereof.
56. Inter alia, the above provision clearly states
that the executive authority of
the federation shall extend to the giving of
such direction to a province as may
appear to the Federal Government to be
necessary for that purpose, namely, the
executive authority of a province is
being exercised to impede or prejudice the
exercise of the executive authority
of the federation. Clauses 3 and 4 of Article 149
enumerate circumstances under
which directions may be issued to the provinces. In
none of these are comprised
the circumstances under which a direction to make a
law may be given by the
Federal Government. To reiterate, the direction may only
relate to the exercise
of the executive authority of the federation and in no other
case. Mr. Nasar
Ahmad, Advocate, learned amicus curiae laid great emphasis on
Article 149 to
argue that this provision in the Constitution is a complete code in all
matters
where directions may be issued by the federation to a province. Article 149
does not contemplate any such direction as has been given by the Prime
Minister/
Federal Government in the present case and so undoubtedly the
direction offends
the mandate of Article 149 and is unconstitutional. An
interesting fact which has
been alluded to in the forgoing paragraphs may once
again be highlighted. It is that
the direction was merely issued in respect of
Punjab and no other province which
proceeded in an utter show of servility in
complying with that direction without
regard to either the constitutional
provisions or the Rules of Business by exercising
the executive act of
promulgating an ordinance. Not only that the direction
contravened the express
provisions of the Constitution, it also threatened the
republican form of
government and the Federal-Provincial balance of power. In the
ultimate
analysis, and as a trickle-down effect, the direction (and the ensuing
Amendment Ordinance) had the unpalatable effect of impacting the rights of
citizens and individuals (which Punjab represented) who have sought judicial
review to have the Amendment Ordinance struck down. Their primary grievance is
that the Amendment Ordinance is an aberration and runs against the grain of the
core principles on the basis of which civil rights ought to be determined. It
fails to
meet the ethos of the people of Punjab and offends the legal
sensibilities of the
primary stakeholders, that is, the representative bodies
of lawyers who, in turn, help
the litigants attain speedy and expeditious
dispensation of justice. The changes
introduced by the Amendment Ordinance also
undermine the stated goal of speedy
justice which has been cast on the State
(which incidentally does not include the
judicial branch) by the principles of
policy in the Constitution. It can be assumed
that, perhaps, the Prime Minister
was not properly advised on these nuances at the
time of issuing the direction.
Amendment Ordinance and
the Lahore High Court (LHC) Amendments:
57. The learned counsel for the petitioners
expounded their grounds of challenge
primarily by reference to the amendments
made to First Schedule of the Code of
Civil Procedure, 1908 (C.P.C.) which
contains the rules. According to the
petitioners, not only that the Amendment
Ordinance and the provisions sought to be
introduced by that Ordinance are
irrational and impracticable but also that they run
counter to the amendments
made by the LHC in the exercise of the delegated
powers conferred upon it by
Part X of C.P.C. They contended that there were
material differences between
the two amendments which may lead to unsavory
situations and would be hard to
reconcile by the civil courts.
58. As explicated, Part X of C.P.C. relates to
power of rule-making which are
contained in the First Schedule. This division
of C.P.C. delegates power on a High
Court to make rules regulating its own
procedure and the procedure of the civil
courts and also has power to annul,
alter or add to all or any of the rules in the First
Schedule. This is a unique
power the significance of which can neither be belittled
nor disregarded. There
is statutory Committee to be constituted under section 123
whose composition is
made up of three Judges of the High Court, two Advocates
practicing in that
Court and a Judge of a civil court subordinate to the High Court.
The Rule
Committee shall make a report to the High Court to any proposal to
annul, alter
or add to the rules or to make new rules and before making any rules
under
section 122, the High Court shall take such report into consideration. Section
126 obliges the rules made by the High Court to be subject to the previous approval
of the government of the province and thereafter the rules so made and approved
shall be published in the official gazette. Section 128 lays down matters for
which
rules may provide relating to the procedure of civil courts.
59. The LHC in exercise of its
delegated powers and after an extensive and
inclusive exercise undertook the
consideration of the entire First Schedule and that
exercise entailed the
consideration of each rule separately. This process spanning
over more than one
and a half year resulted in an elaborate overhaul of the entire
First Schedule
in its application to the Province of Punjab. During the process, the
entire
body of stakeholders including Bar Councils, Bar Associations, Judges of the
subordinate judiciary as well as the Government of the Punjab were consulted.
The
rules were approved by the Full Court of the High Court and prior to which
interactive sessions and deeper consultation took place amongst the honourable
Judges of LHC. After approval by the High Court, the rules were sent to the
Government of the Punjab for approval in terms of section 126 which too was
granted and on 05.08.2018, the amendments in the Rules and Orders of the First
Schedule to C.P.C. were published in the official gazette (The LHC amendments).
LHC took care to postpone the implementation of these rules immediately and for
the purpose delayed the enforcement to a later date to be notified by the High
Court
which was ultimately done on 23.10.2020. During this period, training
workshops
and seminars of subordinate judiciary were held to acquaint the
judges of a tectonic
shift which was about to take place in respect of trial of
civil cases. Corresponding
administrative changes were also set in place to
comport to LHC amendments.
Since then these amendments have come into force
throughout the Province of
Punjab and have brought about a paradigm change in
the trial of cases and their
expeditious disposal. It was acknowledged by all
concerned that the amendments
introduced by LHC were seminal in nature and brought
about for the first time
since independence. That such a large scale
reconsideration of the rules in the First
Schedule was not undertaken priorly.
The amendments were introduced keeping in
view the changed times as well as to
counter the common refrain that justice was
being delayed and thus effective
steps were required to be taken to keep in tune
with changing times. The
Amendment Ordinance has suddenly derailed the process
introduced by LHC and
which was successfully being implemented throughout the
Province of Punjab and
was showing results to the satisfaction of lawyers as well as
the primary
stakeholders, the litigants. For the first time, it truly seemed that the
State
of judicial inertia had been shaken and one could see light at the end of the
tunnel. An aspect which was completely ignored by the Govt. of the Punjab in
promulgating the Amendment Ordinance was that the amendments made by LHC
were
approved by the Govt. of the Punjab and while issuing the Amendment
Ordinance,
various potentially conflicting issues which were likely to arise
regarding
these two amendments, were not considered as a matter of crucial
importance.
The wise words of Lord Bingham (in The Business of Judging) that
"on the
whole, the law advances in small steps, not by giant bounds". This was
based on the statement by Bacon that:
'The
work which I propound tendeth to pruning and grafting the law, and not to
ploughing up and planting it again."
60. It
is established that the rules are part of the C.P.C. and are concerned with
the
details of procedure and can be more readily altered. It was stated in PLD 2005
Lah. 662 that the body of the Code creates jurisdiction while the rules
indicate the
mode in which it has to be exercised. In the statement of
objections and reasons, it
has been stated that this division (Part X C.P.C.)
was introduced "to enable
variations to be introduced in procedure, to
meet different requirements as well as
enable defects to be remedied as they
are discovered without resort to the tardy
process of legislation." The
Code is an amalgam of substantive and procedural
laws. Although the substantive
part contains provisions enacting fundamental
principles of procedural law but
the rules provide the procedure to be followed by
the courts in the application
of those principles. Historically, this distinction has
always been maintained
by the legislature while enacting any amendments in the
Code. It has always
been the practice that the main body of the Code (excluding the
First Schedule)
comprise of substantive provisions and merely fundamental
principles of
procedural law, if any. All matters of procedure and their details have
always
been part of the First Schedule and that is why the delegation has been
made on
the High Court to not only make rules but to alter or add to any of the
rules
in the First Schedule. This powers also flows from Article 202 of the
Constitution which provides that:
"202.
Subject to the Constitution and law, a High Court may make rules
regulating the
practice and procedure of the Court or of any court
subordinate to it.
61. Thus, the High Courts have been conferred the
constitutional power
regarding rules of procedure which may not only regulate
the practice and
procedure of a High Court but also any court subordinate to
it. In exercise of this
power, LHC has made rules entitled 'High Court Rules
and Orders' which contain
an elaborate procedure to be followed by the courts
subordinate to it in matters
relating to adjudication of cases before civil
courts. Thus, not only has the High
Court been delegated the power of making
and amending rules in the First Schedule
by the Code itself but also by the
Constitution by virtue of Article 202. This central
question regarding power of
High Court (LHC in this case) has escaped the
attention of the Government of
the Punjab while promulgating the Amendment
Ordinance which impinges upon the
powers of LHC to enact and amend the rules.
This proposition is being stated
for the simple reason that the amendments
introduced by the Amendment Ordinance
are made part of the substantive body of
the Code and not in the rules
comprised in the First Schedule and almost all of
them relate to the details of
procedure to be followed by the civil courts in the
adjudication of cases and
which, as adumbrated, has traditionally been part of the
First Schedule. A
grossly egregious and anomalous situation has now been created
which pits the
procedure introduced by Amendment Ordinance against the
amendments made by LHC
which now run a parallel course. There are serious
contradictions between the
two processes which in most cases are irreconcilable.
The Amendment Ordinance
and its promulgation has introduced a situation which
impedes justice rather than
promoting the cause of expeditious and speedy justice.
One of the petitions has
been brought by the Punjab Bar Council which speaks for
the entire body of
lawyers in Punjab and is categoric in asserting that matters
before the civil
courts of Punjab have come to an intersection with utter chaos
reigning before
the civil courts. Not only that LHC was not consulted in the matter
but also
the Bar Councils were not required to proffer their comments in this
regard.
Although in such matters consultation with LHC is not normally a sine qua
non
but in the peculiar circumstances of this case where across the board
amendments in the rules had been made by the Committee of the High Court only a
few months ago, the Government of the Punjab was obligated to have consulted
LHC for the purposes of reconciliation of the two amendments in order to avoid
inconsistency and confusion. Also while a reference to Article 202 of the
Constitution has already been made, it also by implication follows that the
exercise
of rule making power is constitutional which resides in a High Court
and, therefore,
if such power has already been exercised, it emerges as an
unwritten rule to be
followed in all such matters that it is of utmost
importance that consultation be held
between a High Court and the government of
province. It is not only essential for
the administration of justice but also
to preserve the independence of judiciary that
in a unique situation where
judicial legislation is permissible, Punjab should act
conformably with LHC's rule-making
process. If the two were to act in tandem with
each other, it would only
advance the cause of litigants and help achieve speedy
justice. At the time of
enactment of LHC amendments, there was a palpable sense
of excitement and it
was generally accepted that, in the words of Walter Bagehot, "a
new world
has arisen." Roscoe Pound, academician and legal jurist, in
"Interpretation of Legal History" said that:
"All
thinking about law has struggled to reconcile the conflicting demands of the
need of stability and of the need of change. Law must be stable and yet it
cannot stand still."
2. The Amendment Ordinance has had the
pernicious effect of putting the
stability of law at great risk. Wide-ranging
and polycentric amendments have
suddenly thrown the entire system in a
disarray. The foregoing articulation is
peculiar to the context of ordinance
making power of Punjab, which is an executive
act. A distinction is clearly
discernable between the Act made by the Provincial
Assembly and the act of
promulgating an Ordinance by the political executive. The
latter is subject to
judicial review on the ground that it is an arbitrary uncontrolled
discretion
and falls foul of clear principles. It may be said that the ordinance-
making
power is not fixed in legislative cement but written in softer sand of
Executive Order.
63. Let us now advert our attention to the
contradictions which become apparent
when we square the Amendment Ordinance
with LHC amendments. This would
bring forth clearly not only that the
provisions of the Amendment Ordinance are
largely unworkable but also that they
breed inconsistency with LHC amendments.
It would also bring forth starkly the
fact that substantially these amendments relate
to rules of procedure and their
rightful place was in the First Schedule of the Code.
64. Section 6 relates to pecuniary jurisdiction of
the civil courts. It provides that
where the amount or value of subject matter
of the suit is below Rs.50 million, the
suit shall be filed in the court of
civil judge and where the amount or value of the
subject matter of the suit is
above Rs.50 million, the suit shall be filed in the court
of a District Judge
prescribed by the High Court. Astonishingly, it does not mention
the court
where a suit for an amount or value of Rs.50 million may be instituted.
Section
26 has been substituted to provide that:
"26.
Institution of suits through plaint or otherwise.- (1) Every suit shall be
instituted by the presentation of a plaint or in such other manner as may be
prescribed."
 65. The above contradicts the amendments made by
LHC in the rules where a
suit shall be instituted by presentation of a plaint
and not in such other manner as
may be prescribed. Further, section 26-A has
also been substituted and concerns
with the filing of written statement which
has been directed to be filed not later
than 30 days from the date of service.
This provision empowers the civil court to
allow further adjournments in the
filing of the written statement. Once again, this
runs counter to LHC
amendments made in Order VIII of the First Schedule which
provides a maximum
period of 30 days for the filing of the written statement
including any
permission to present the written statement beyond the time given by
the court.
Likewise, section 26-C prescribes a period of 90 days from the institution
of
the suit for the court to determine the material propositions of fact and laws
and
frame issues. Contrarily, by Order XIV, Rule 1 C.P.C., LHC amendments
require
the court at the first hearing of the suit after proceeding under
Orders X, XI and XII
to frame the issues. It may be noted that LHC amendments
laid much emphasis on
the fixation after the close of pleadings (by
substitution of Order IX-A) which
would include a day for examination of
parties under Order X; a day for discovery
and inspection under Order XI; and a
day for its proceeding under Order XII. It has
been made a duty of the court to
undertake these proceedings and to satisfy itself
that the parties go to trial
for precise and exact issues of law and facts that they are
at variance with
each other. A crucial addition to the rules is therefore Order IX-A
which
relates to alternate dispute resolution where the court shall refer for
mediation before the parties are called upon to adduce evidence. Once again the
alternate dispute resolution is an important plank brought in by LHC amendments
and the Amendment Ordinance makes no reference to this aspect and which would
completely nullify the effect of mediation as an engine of dispute resolution.
66. One of the drastic changes made through
Amendment Ordinance is the
taking down of evidence of witnesses through
appointment of a Commission. There
is no concept of the appointment of a
Commission for the purposes of recording of
evidence in LHC amendments. This
concept is not in accord with the principles of
fair trial as various aspects
such as demeanor of the witnesses regarding which
emphasis has been laid in the
rules in the First Schedule would be circumvented
and jeopardized. Moreover,
LHC amendments introduces an important concept of
an administrative judge and a
trial judge by bringing in a new Order IV-A. In short,
the administrative judge
to be designated by the District Judge is empowered to
undertake complete
pre-trial proceedings in a suit which have been mentioned in
rule 3 of Order
IV-A. Thereafter the administrative judge shall cause the suit along
with
entire record to be placed before the trial judge for its trial under the Code
which primarily comprises evidence to be adduced by the parties. Thus separate
trial judges have been designated under LHC amendments which would complete
the
trial under the Code and would be tasked with recording of the evidence of the
witnesses. This scheme initiated by LHC amendments would, by the Amendment
Ordinance, be rendered as redundant. Moreover, since the respective proceedings
would still be part of the Code as well as the rules, the civil courts would
struggle
to grapple with the provisions to be actually and practically
enforced. The
notifications issued by Lahore High Court would also become
redundant and which
have been issued precisely to give effect to LHC amendments
which set up the
structural framework proposed to be introduced by the High
Court.
 67. The most invidious amendment in my opinion is
the addition of new section
75A in the Code. This section provides that:
"'75A.
Spot checks. (I) In order to further the primary objective mentioned in
subsection (4) of section 1, in any proceedings in a suit, the Presiding
Officer of the Court in its discretion may, on his own or at the application of
any of the parties, at any stage may carry out spot checks including
inspection
of documents and premises in order to ascertain issues of
partition,
demarcation, possession, state of construction and anything
incidental and ancillary
thereto.
Explanation
I.--For the purposes of this subsection, spot checks may be carried
out after
passing of decree to ensure that order of the Court are implemented
as decreed.
Explanation
II.--For the purpose of this subsection a spot check conducted by
Presiding
Officer of a Court should not be construed to be an inspection
through the
appointment of Commission.
(2)
The Court may call for the evidence of any person or documents at the spot.
Explanation.--For
the purpose of this subsection 'person' includes parties to the
suit,
individual persons at the spot or any individual whom the Court may
deem proper
to give evidence in the matter in issue.
(3)
After conducting spot checks, an interim order recording the findings of the
spot inspection shall be prepared and signed by the Presiding Officer of the
Court:
Provided
that the interim order shall state the date, time, purpose of visit,
evidence
recorded and interim findings.
(4)
The Presiding Officer, in his discretion shall be entitled to pass an order or
judgment upon the basis of interim order mentioned in subsection (3) of this
section provided the same is confronted to all the parties, who are given a
reasonable opportunity to file objections to the same."
68. As can be seen from a reading of section 75A
above, it introduces the
concept of spot checks and empowers the presiding
officer of a court to carry out
spot checks including inspection of documents
and premises in order to ascertain
the issues of partition, demarcation,
possession, state of construction and anything
identical and ancillary thereto.
This provision has many flaws which were not
considered at the time of its
enactment. For one, it transposes the presiding officer
from being a judge and
an arbitrator of the competing claims before him and
relegates him to the
position of a witness for interim order passed under subsection
(3) shall
contain the findings of the spot inspection and any party to the litigation
may
choose to challenge those findings by requiring the presiding officer to be
summoned as a witness. This provision also takes us back to the days of palm
tree
justice as was known in the 12th and 13th century and which we thought had
been
consigned to oblivion long ago. It gives the presiding officer a carte
blanche during
the spot checks who may call for evidence any person or
documents at the spot
whether relied upon by a party or not. This process, to
say the least, is grossly
offensive to the Qanun-e-Shahadat Order, 1984 and the
provisions contained
therein. It also offends Article 10A of the Constitution
which mandates that for the
determination of the civil rights and obligations,
a person shall be entitled to a fair
trial and due process. Subsection (4) of
section 75A confers on the presiding officer
the discretion to pass an order or
judgment upon the basis of the interim
order
mentioned in subsection (3). Once
again, there is no mention of the rights of the
parties to adduce evidence and
the corresponding obligation of the presiding officer
to consider that evidence
while announcing his judgment. Thus, it seems that
section 75A is a complete
code of procedure by which a case may be decided by
the presiding officer at
his discretion on the basis of spot checks. Notwithstanding
the other
provisions of the Code and many other enactments like the Qanun-e-
Shahadat
Order, 1984, section 75A establishes a wholly new procedure by which
cases
could be decided by the presiding officer of a court. This, if I may say with
respect, upends and destroys the very foundation of the civil law in our
country for
which elaborate and rational procedures have been laid down to
conform to the due
process of law.
69. Section 96 will inundate the Lahore High Court
with hundreds of appeals
weekly for which the number of Judges is woefully
deficient. By substituting
section 96, all first appeals shall now lie before
the Lahore High Court within thirty
days of the passing of the final judgment
and which shall have to be decided within
ninety days. This amendment once
again lacks proper appraisal of the ground
realities and the capacity of the
Lahore High Court to entertain and decide these
appeals which will henceforth
land on its docket. No thought process went into the
enactment of section 96 which
was not preceded by comparison of empirical data to
show that providing the
first appeal directly to the Lahore High Court is likely to
run not at the
expense of speedy justice.
70. The Amendment Ordinance also substituted
section 141. Previously section
141 was addressed to all proceedings in any
court of civil jurisdiction and made
applicable the procedure provided in the
Code to be followed in such proceedings
as well. The amended section 141 is
improvident and has been extended
unreasonably and thoughtlessly to provide for
matters which have no nexus with
subsection (1). It merely goes on to state
that all suits in which interlocutory
applications have been filed shall have
duplicate sets, one of which shall be placed
in the court hearing main suit and
the other shall be placed in the court hearing
interlocutory applications
without specifying the procedure as to how these two sets
of courts will be
designated and by whom? Therefore, by section 141 two parallel
streams of civil
courts have been envisaged without any further explanation as to
how these
courts will function.
71. The above salient features of the Amendment
Ordinance and their
comparison to LHC amendments has been brought forth simply
to show that they
not only counteract with each other but also that the
provisions sought to be
introduced leave much to be desired and are improvident
and pernicious. The basic
notions of administration of justice regarding
determination of civil rights have
been consigned to the oblivion while
promulgating the Amendment Ordinance and
these provisions taken together make
breath-taking inroads upon civil procedural
rights of the litigants. To
reiterate, these amendments disregard the previously
enacted LHC amendments
which too not only had statutory but constitutional basis
and were the result
of thoughtful and inclusive consultative process. They are liable
to be struck
down also on the ground that there was no prior consultation with the
Lahore
High Court in order to streamline and reconcile the amendments made
through the
Amendment Ordinance with LHC amendments which had their source
in the
Constitution.
72. The above petitions are allowed. The Amendment
Ordinance is held to be
without lawful authority and of no legal effect and
unconstitutional. It is hereby
struck down.
The above are the detailed reasons in
support of the short order passed by this
Court.
MH/V-1/L Petition
allowed.
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