INDEPENDENCE OF JUDICIARY
Advocate High Court & Service Tribunals
This article solely based upon work done in order to reach a logical conclusion whether the functioning and administration of service tribunals in Pakistan can be brought within the ambit of Article 175 of the constitution of Pakistan 1973, which deals with the independence of judiciary and ousts executive from meddling into the affairs for judiciary and also whether service tribunals form part of the judiciary. Whether appointment of members from executive militates the concept of independence of judiciary in our country, if so what is the effect and consequences. This article also focus on the proposition whether mere performance of judicial functions by the service tribunals drag them within the strict definition and ambit of court or otherwise can be termed as court for the strict purposes of Article 175 of the constitution.
“A court is permanently organized body with independent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice…………….” WILLIAM J, HUGHES
…………In a large number of cases decisions of administrative tribunals are judicial in nature, in the sense that the tribunals have to decide facts and apply rules to them impartially and without at times considering executive policy. Such tribunals are “in substance courts of law” ………….. (WADE H.W.R ADMINISTRATIVE LAW 3RD EDITION)
DEFINITION OF COURT AND TRIBUNAL RESPECTIVELTY: BLACKS LAW DICTIONARY
“A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice”
“A court of other adjudicatory body”
THE QUESTION for determination as to which forum is a court and which is not a court requires prime consideration at this moment. Procedural law qua method of presentation of lis is attracted to ascertain the essential element and character of court as such. Tribunal is bound to follow a defined procedure and to settle the disputes thereby administering the law and justice and also on very occasions enforced the fundamental rights qua terms and conditions of civil servant and examined applicability of laws and rules to the facts and circumstances of each particular case. On one hand judgments and orders passed by the service tribunal embrace the essential characteristic and perform in the administration of justice, verdicts of the tribunals have been held to be of binding and enforcing nature. Even our supreme court is clear on this issue. Reference may be made to 2009 SCMR 1 says:-
“If a tribunal or the supreme court decides a point of law relating the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation, instead of compelling them to approach the tribunal or any other legal forum………….”
Reference may also be had to judgment cited as PLJ 2008 TRC (SER) 219, wherein Honorable Federal Service tribunal held and discussed the binding character of the judgments pronounced by the service tribunals as such. So far as the proposition as to whether the tribunal has the power to implement its own orders/judgments is concerned let me refer at this juncture case law cited as 2008 PLC CS 517 authored by Mr Justice® Tanvir Bashir Ansari, appropriate would be to reproduce the relevant extracts of the judgment below:-
“……….Where jurisdiction was conferred on court or tribunal to pass an order, power to have that order implemented was implicit in that jurisdiction……Service Tribunal being a civil court within a meaning of Section 5(2) of Punjab Service Tribunal Act 1974, for the purpose of deciding appeal, it had all the powers of “civil court” provided under CPC. ………Service Tribunal could get its order enforced/executed………….Tribunal shall be deemed to be a civil court…..indeed this is a deeming clause but howsoever strictly we choose to interpret this clause. We must end up with concluding that the powers of civil court under the CPC conferred upon the tribunal are real and actual rather than being illusory only…….tribunal shall be fully competent to exercise power as detailed in Order XXI of CPC in matters relating to execution of judgments, decrees or orders. Section 36 CPC provides that all provisions of CPC relating to the execution of decrees would be equally applicable for execution of orders as well……”
Service tribunal by its creation is responsible for the administration of justice rather administers justice in strict legal sense. The term justice is defined as “The fair and proper administration of justice” (Black’s Law Dictionary). Rather the term “justice” inheres somewhat “proper administration of justice” in itself and not independent of each other, co-existence thereof. Service tribunals are independent bodies, being creation of statute, are bound by law, rules and procedure as such. There is no cavil to the proposition that tribunal can follow any procedure in aid of justice apart from what has been expressly provided by the law, these features are also inherent in the tribunals. Tribunal definitely falls within the pyramid created by Article 175 of Constitution of Pakistan 1973.
ARTICLE 175(1) – There shall be a supreme court of Pakistan, a high court for each province and such other courts as may be established by law.
(2)- No court shall have any jurisdiction save as is or may be conferred on it by the constitution or by or under any law.
(3)- The judiciary shall be separated progressively from the Executive within (fourteen) years from the commencing day.
2006 PLC CS 158
Judiciary consisted of various types of Courts, with the highest at the apex as ultimate Court of appeal. Out of that pyramid there were other Special Tribunals. Functions of each Court or Tribunal were defined under Constitution of Pakistan or laws made under the Constitution. Constitution or the laws, as the case may be, also specified the subjects with which those Courts or Tribunals were to deal with. Under such multiple systems, limitations were inherent so that one Court or Tribunal Could not encroach upon the defined field or subject of the other. Functions of each Court or Tribunal were circumscribed within the four corners of their defined jurisdiction.
INTERPRETATION OF ARTICLE 175
PLD 1995 LAH 6
………..”Article 175 of the constitution is not self-executing provision (it lacks the characteristics of self-executing provisions). It also does not limit the bodies which can only be called court. Court or judiciary in Article 175 appear to have been used in a generic sense in contradistinction to executive bodies, the hierarchy of which culminates, in case of the federation, in the president, and in case of province, in the Governor. Courts or judicial forums thus would be all those bodies which perform judicial functions and dispense justice…………..”
ESTABLISHMENT OF SERVICE TRIBUNALS
REFERENCE: Address of Z.A Bhutto
Following the mandate as expressed by the prime Minister in his speech, law was passed introducing new service structure and laying down terms and conditions of the civil servants. The most important federal law passed in this behalf was civil servant ordinance 197, which was later on replaced by Act of parliament containing similar provisions. In accordance with Article 212 of the constitution, legislation was passed establishing service tribunals relating to civil servants. The president was empowered to establish one or more service tribunals through notification specifying therein their territorial limits within which their jurisdiction would extend. The federal service tribunal consisted of a chairman and other members to be appointed by president of Pakistan. The provincial service tribunals were also established on the same lines, consisting of one chairman and other members to be appointed by the Governor of the province concerned. (Administrative Law)
QURANIC REFERENCE OF INDEPENDENCE OF JUDICIARY 2006 SCMR 606 AND TRICHOTOMY
Scheme of the Constitution is based on Trichotomy—In the system of Trichotomy, the judiciary has the right to interpret, the Legislator has right only to legislate and the Executive has to implement—Trichotomy of powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere. In fact awareness has been given to the world 1400 years ago by Almighty Allah in the Holy book of Quran in “Sura Rehman” warned the human being not to disturb balance in any sphere otherwise destruction is must. Article 4 and 5(2) of the constitution shall compel every body to act in accordance with law.
APPOINTMNET OF MEMBERS FROM EXECUTIVE SIDE:
The qualification of judges given in Islam as well as flowing out of various Ahadits is binding on State of Pakistan. As judiciary is controlled and regulated by a judge, therefore a judge should possess all the qualities and attributes which makes this position respectable, honorable and creates public trust and confidence in him. It is for the judge to first prepare himself morally and mentally capable to hold the post. No one is a born judge but the traditions, learning, knowledge, humility, courage and the resolve to do justice impartially, independently and without fear of favour, affection or ill-will make a judge. No matter whatsoever terminology is used for the members of tribunals, they have to fulfill the requisite qualification emanating from the Islamic declarations. .OFTEN it remains in confusion and also to the tilt of principle of natural justice whether a member of the executive/civil service sitting against his own department (where he was previously posted and held interests), decides a matter by becoming member of the service tribunal either after retirement or through transfer or deputation. Member represents the executive side, no matter whether or not he was party to that litigation within the department, could not oust his personality on the logic that he being member from the executive side (suppose member board of revenue) cannot act or decide cases in service tribunal in such a way to attract displeasure of his superiors in the revenue department. This position arises out of insecurity of tenure, unsafe posting conditions, as well as uncertain appointment scenario of such executive officers. Being not independent, neutral, impartial and fair while deicing the appeals or matters before it thereby undermines Article 175 of our constitution. What is reasonable classification is not question of fact. On the other hand superior courts have held that tribunal must decide lis before it after proper adjudication and judicial application of mind. Judges are judges as distinct from the members of executive. It is the duty of judges to decide lis after judicial application, notwithstanding the fact that each and every officer whether belonging to executive or judiciary are duty bound to apply their independent judicial mind while deciding cases before but difference still holds the field on the ground that where law requires judiciary to be independent and separate in each and every aspect from the executive, it should be done in complete scenario. Question of one being prejudicial with the appointments as such cannot arise as discussed above. The whole judiciary as well as service tribunals which are sharing judicial powers as such must be brought in conformity with Article 175 or at least to the extent that their working, functioning do not violate the concept of independence of judiciary as well as separation of powers being founded in the Objective Resolution in our constitution. They belong to judiciary, trained under high esteem, standard of modesty emanating from jurisprudential approaches. No matter member of the tribunal follows the judgments pronounced by the superior courts but interpretation rests on the jurisprudential aspect on the other hand for which again members of judiciary have been found at highest pedestal while doing so, which at least cannot be expected from the members of executive working as members of the tribunals. We are confronted with the argument that it is the legislature being competent to decide that who should be appointed in the service tribunal as member therefore. We are also mindful of the fact that function of court is jus dicere and not jus dare, as reforms of law must be left in the hands of the parliament. The basic purpose of court/tribunal is to decide disputes between the parties before it but common man’s confidence is very important to be obtained and satisfy the conscience should follow the decision. On counter it could be argued that even retired Session Judges are appointed as members of Tribunal than no violation of Article 175 could be presumed in this article. Even on that footing the retired District and Session Judge, being member of the tribunal remains on contract, appointed by the government, remain employee of the government, financially dependent on the government in complete respect, hence directly invites the intervention of executive side. The counter argument dies on this ground alone. As regards the common man’s confidence and expectations from the judicial functionaries the following dicta is relevant:-
EFFECT: PLD 2006 KARACHI 629: Equality before law was one of the cardinal principles of jurisprudence recognized by all civilized societies-All persons, high or low, was equal before law. Justice must be even-handed and should not be selective even in the matter of procedure. Not desirable to adopt different procedures in the trial of cases simply on the basis of the parties being high or low. Judges should not be respecters of persons. Even a law prescribing different procedures for the trial of cases according to the status of the parties, might not stand the test of reasonable classification. Any attempt to give special treatment to a case on the basis of high status of a party could have the effect of undermining common man’s confidence in the independence, impartiality and fairness of judiciary.
The very first question often emerges when a person invokes the door of the tribunal that who heads the court/tribunal. Perhaps general public’s confidence especially after the post November 3 scenario rests in the judiciary and judges as such. People presume confidence from the judicial working and judicial officer being independent and fair can only counter the common man’s hope qua impartial, up to the mark and fair decision. Supreme Court on the head of the tribunal to check legality of orders passed by it is no ground to infer that if any order/judgment is passed in conflict with law, Supreme Court can remedy the situation.
INDEPENDENCE OF JUDICIARY: REAL SENSE EXPLAINED
PLD 1994 SC 105
Now according to the consensus of the jurists the independence of judiciary means:-
1) That every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducement of pressures, direct or indirect, from any quarter or for any reason,
2) That the judiciary is independent of the executive and legislature and has jurisdiction, directly or by way of review over all issues of a judicial nature.
PLD 1989 SC 673:- “……….the right to access to justice includes the right to be treated according to law, the right to have a fair and proper trial and right to have impartial court or tribunal……….unless an impartial and independent court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should separate from executive and not at its mercy or dependent on it……………..”
NO BODY CAN BE A JUDGE IN HIS OWN CAUSE
It is fundamental principle of justice that no one can be allowed to sit as judge in his own cause. Members of the tribunal posted from the executive side as discussed above negates the independence of judiciary, cannot act fairly and impartially sitting as judge in judgment against their own pillar. Member of the executive should not be allowed to sit as judge in the tribunal where in all cases executive departments are made respondents before the tribunal. Rather it is impossible for an executive servant to pronounce judgment against his own institution/department. There are many incidents where it not so occurred, but this cannot be made ground for validation as such.
CONCEPT OF INDEPENDENCE OF JUDICIARY AND INTENT OF ARTICLE 175 OF CONSTITUTION PLD 2008 SC 522
In broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of judicial functions rather in the extended meanings, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary .Supreme Court observed that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of Executive Authorities and Executive Authorities, without recognizing the independent status of judiciary as an important organ of the State, treat it as their subordinate department—In such matters; Executive is not supposed to interfere in the affairs of judiciary in any manner. While interpreting Article 175 supreme court held that concept of independence of judiciary is not confined to the extent of disposal of cases by the judges and discharging judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the state in all matters………”
PRINCIPLE OF SEPARATION OF JUDICIARY: – PLD 1993 SC 341 “……….Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trials of offence in the hands of the executive officers. This is merely a semblance of establishing courts which are authorized to decide cases and adjudicate rights, but in fact such courts which are manned and run by the executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of the constitution……….”
JUDICIAL ADMINISTRATION AND ROLE OF JUDICIARY:-: whether appointment of members of tribunal (executive class) negates the principle of separation of powers and independence of judiciary.
ZAFAR ALI SHAH CASE PLD 2000 SC 689: ……………………………a system of constitutional governance, guaranteeing fundamental rights and based on the principle of trichotomy of powers, such as ours the judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between state and citizens or citizens inter-se. the judiciary is entrusted with the responsibility for enforcement of fundamental rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of fundamental right are nullified and the rule of law upheld in the society………………………… the constitution makes it the exclusive power/responsibility of the judiciary to ensure the sustenance of system of “separation of powers” based on checks and balances. This is legal obligation assigned to judiciary. ………judiciary has to be properly organized and effective and efficient……….and has also to be strong and independent enough to dispense justice fairly and impartially. It is such an independent judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society……………..”
INSECURE TENURE OF MEMBERS OF SERVICE TRIBUNAL and that too UNDER EXECUTIVE CONTROL: EFFECT
PLD 2008 SC 522
The judicial history of Pakistan is full of victimization of the judges of superior courts at the hands of the executive and irrespective of the fact that independence of judiciary has always been considered a threat to the executive, the judges collectively as well as in their individual capacity has always been functioning according to their conscience. The judiciary is an important organ of the state and without the independence at all levels in all affairs including the financial matters, the right to access justice cannot be ensured, therefore independent and strong judiciary for good governance and welfare of the people is essential and thus the matter relating to the appointment or removal of judges from their offices , security of their tenure, pay and pension and all other privileges must not be in the executive control and domain of executive rather the role of the executive in such affairs of the judiciary must be curtailed to the extent of only general supervision, so that judicial reforms in real sense can be made to the requirement of the judiciary. It is thus imperative that all matters concerning with the judiciary should be decided by the judicial policy making body, a highest statutory body in the judiciary which consists of the chief justices of all high courts and chief justice of Pakistan , as its chairman. The direct and indirect control of the executive authorities in the affairs of the judiciary has always been a hindrance in the administration and dispensation of justice and also the smooth functioning of judiciary.
On somewhat similar premises National Judicial Policy 2009 was framed by the National Judicial Policy Making committee, statutory body and nation’s apex judicial forum. The thrust of National Judicial Policy is to consolidate and strengthen the independence of judiciary, thereby enabling the judicial organ to exercise institutional and administrative independence and judges to have decisional independence to decide cases fairly and impartially. Apart from other provisions and recommendations vide National Judicial Policy 2009, it mainly focused on separation of judiciary from the executive completely. Some extracts there from are reproduced below:-
A: – INDEPENDENCE OF JUDICIARY
(3):- Instead of appointing retired judges/judicial officers as presiding officers of the special court/tribunal, qualified serving judges be appointed against these posts, in consultation with the Chief Justice of the High Court.
(5):- All special courts/tribunals under the administrative control of Executive must be placed under the control and supervision of the judiciary, their appointments/postings should be made on the recommendation of the Chief Justice of the concerned High Court.
The word “CONSULTATION” was best defined in AL-JEHAD TRUST CASE CITED AS PLD 1996 SC 324
“The meaning of the word “Consultation” is very pivotal in nature because the independence of the judiciary and the appointments of the judges have close nexus with it or in other words deep rooted in it……….the word consultation used in the constitutional provisions relating to the judiciary is to be interpreted in the light of the exalted position of the judiciary as envisaged in Islam and also in the light of the several provisions of the constitution which relate to the judiciary guaranteeing its independence …..The institution of judiciary in Islam enjoys the highest respect………..consultative process is mandatory and without it no appointment can be made.”
On the same principle while appointing/posting members of service tribunal the competent authority should consult with the chief Justice of high court in case of province and that of Pakistan in case of federation.
SERVICE TRIBUNALS SHARE JUDICIAL POWERS
MEHRAM ALI V/S FEDERATION OF PAKISTAN
PLD 1998 SC 1445
“……….any court or tribunal which is not subject to judicial review and administrative control of the high court or the supreme court does not fit in within the judicial frame work of the constitution……….tribunals/courts which are manned and run by executive authorities without being under the control and supervision of high court in terms of Article 203, cannot meet the mandatory requirement of the constitution……….constitution recognizes only such specific tribunals to share judicial powers with the above courts, which have been specifically provided by the constitution itself: Federal Shariat court, Tribunals under Article 212, Election Tribunals. It must follow as a corollary that any court or tribunal which is not founded on any of the articles of the constitution cannot lawfully share judicial powers with the courts referred to in Article 175 and 203……….the hall mark of our constitution is that it envisages separation of judiciary from the executive in order to ensure independence of judiciary and therefore, any court or tribunal which is not subject to judicial review and administrative control of the high court and or the supreme court does not fit in within the judicial frame work of the constitution……….”
APPEAL TO SUPREME COURT AGAINST JUDGMENT OF SERVICE TRIBUNAL
Where an appeal is preferred against the judgment of service tribunal before Supreme Court and apex court affirms the judgment of the tribunal, the verdict of the tribunal merges into that of judgment/order of Supreme Court as such thereby Implementation is mandatory upon the concerned functionaries under Article 189 and 190 of Constitution of Pakistan 1973. Tribunals cannot be said to have been working on administrative side. When proceedings are culminated by the department, appeal is filed before the tribunal, it is a judicial forum sitting as judge/court against the executive to check and legality of orders passed therein. Appeal before the tribunal is continuation of proceedings but it cannot be assumed that tribunal also acts in strict sensor like executive authorities or on the administrative side. Tribunal can assume the powers of departmental authorities in proper administration of justice, but it remains within pre-defined parameters and functions assigned by Article 175 and 212 of constitution of Pakistan as such. On similar analogy when appeal is filed before the Supreme Court, it is treated as judicial proceedings before the court. Hence the proceeding of the tribunal (judicial functionary) is challenged in the same hierarchy i.e before Supreme Court of Pakistan.
GENERAL POWER OF SUPERINTENDENCE AND ADMINISTRATION
Whether the service tribunal in Punjab can be termed as sub-ordinate to High court for the purpose of superintendence requires consideration. Also the case of the Federal Service Tribunal in relation to Supreme Court. On somewhat similar premises as in Indian Constitution Tribunals in Pakistan Share and perform judicial functions with courts flowing out of Article 175. On the other hand Lahore High Court in case cited as PLD 1996 LAHORE 542, held that “………. So wherever judicial power vests in a body/forum, whether designated as a court or tribunal and any right or liability conferred on or ensuing under a law is to be determined, the control and supervision over the said body/forum/court or tribunal under the mandate of the constitution has to vest in the High court……….”
Based on this principle Provincial Service Tribunals as well as Federal Service Tribunal in mandate of Article 175 should be placed under the supervision and direct control of respective high courts and Supreme Court of Pakistan respectively to ensure independence of judiciary and total elimination and interference of executive into the affairs of the judiciary as such. No matter whatever functions they perform but should be placed under direct judicial administrative control.
Even otherwise SUPREME COURT of Pakistan as well as respective high courts can direct the competent legislature to amend the law to bring within the ambit of Article 175 of constitution of Pakistan.
METHOD OF APPONTMENT OF MEMBERS IN THE TRIBUNALS
So far as this proposition is concerned, it requires deep study and exposition of law, but in my humble view let the respective high courts be empowered through general notifications to hold competitive test for appointment of members of tribunals in this regard. In this way tribunal will be helpful working under the direct control of judiciary. However there is no hindrance in appointment of serving District and Session judges as members of service tribunal through out country as it would be in the scheme and mandate of Article 175 of constitution of Pakistan 1973.
Judiciary has been termed as a watchdog and sentinel of the rights of the people and the custodian of the constitution. The judiciary holding such exalted position must be independent and separate from executive. After Post November 3, 2007 scenario, nation as a whole has deepened its expectations in judiciary as this institution offered a ray of hope to this trembling country, creating therein confidence , trust and courage for rule of law in its true sense. In my humble view the honorable Supreme Court of Pakistan is quiet competent to direct the concerned quarters to implement Article 175 in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so that we could feel proud having independent and impartial judicial system for all times to come.