This week, while our national gaze was focused on the rising temperatures at the LoC, and the uneventful Raiwand March, the honourable Supreme Court of Pakistan delivered a landmark judgment (in the case of Ch. Muhammad Akram vs. Registrar, Islamabad High Court and others), which strikes at the heart of judicial accountability and limitations of the administrative powers of the judiciary. Specifically, the honourable Supreme Court has declared that the appointment made within the administrative hierarchy of the honourable Islamabad High Court (IHC), by the respective Chief Justice(s), in violation or relaxation of the concerned rules and dictas of transparency, are unlawful and invalid.
While this might sound unremarkable to a reader who is not directly concerned with the legal profession or the judiciary, it has deep and far-reaching consequences for the project of justice in Pakistan.
Before delving into the impact and nuances of this judgment, a brief overview of its background and content is necessary.
This case emanates from a petition filed on the basis of Audit Report for the years 2010 to 2013, by the office of the Accountant General, Pakistan Revenues, Islamabad. In the said report, it was observed, “that after re-establishment of Islamabad High Court in 2010 not a single appointment of officers/officials has been made on merit and a number of appointments have been made in relaxation of rules including absorption of officer and officials (deputationists) in much higher scales than they were holding in their parent departments.” Interestingly, these include appointment of the brother of the incumbent Chief Justice IHC, to the post of Deputy Registrar of IHC, without any advertisement, in “relaxation” of the concerned rules for appointment.
To put this audit observation in context, it is pertinent to recall that the honourable IHC was first established through the Presidential Order No. VII of 2007. Later, this establishment of the IHC was declared unconstitutional by the honourable Supreme Court, in the famous case of Sindh High Court Bar Association (PLD 2009 SC 879). Subsequently, pursuant to the 18th Constitutional Amendment, the IHC was again established through the Islamabad High Court Act 2010. At the time, in the absence of any legislative rules of procedures for the IHC, the law required that appointments to the administrative staff of IHC be made in accordance with the rules framed for the honourable Lahore High Court. Thereafter, the Islamabad High Court (Appointment and Conditions of Service) Rules, 2011, were framed, which stipulate specific and transparent procedures for appointment of officers and staff of the IHC.
In this background, the Petitioner contended, inter alia, that (1) appointments within IHC had been made without any advertisement; (2) “ineligible candidates” were appointed within IHC, in violation of the relevant Rules; (3) direct appointments had been made on posts for which individuals could only be appointed through “promotion”; (4) appointments had been made in absolute disregard of merit; and (5) the concerned Chief Justice(s) of the IHC had illegally relaxed the Rules, in order to make (nepotistic?) appointments.
The judgment of the honourable Supreme Court reveals that the defence relied primarily on the idea that such a petition could not heard by the honourable Supreme Court (being not maintainable) under Article 184(3) of the Constitution. Specifically, it was argued that (1) Article 199(5) of the Constitution bars the issuance of a writ against orders of a superior court judge; (2) even administrative orders of a Chief Justice (or other judges, e.g. Administrative Committee) are protected from judicial review; (3) this protection extends to orders passed by the ‘Registrar’ of the Court; (4) order of the Chief Justice or the Registrar can only be inquired into if these are mala fide, coram non judice, or without jurisdiction; and (5) that the case does not involve a question of “public importance” and “Fundamental Right”, as required under Article 184(3) of the Constitution.
The honourable Supreme Court, in deciding the issue, starts with a bold declaration that “It is important to unshackle some of the legal minds from the preconceived notions about the limitations to ‘justice’.” As part of this ‘unshackling’, the honourable Court declares that the issue is, in fact, one that concerns fundamental right of prospective candidates as well as litigants, and is of public importance since it relates to the administration of justice, and thus can be entertained within the contours envisioned by Article 184(3) of the Constitution.
Furthermore, the honourable Supreme Court, while overturning precedents on the issue – Asif Saeed’s case (PLD 1999 Lahore 350) and Muhammad Iqbal’s case (2010 SCMR 632) – creates a distinction between the “judicial power” of the Chief Justice, exercised under Article 199 of the Constitution, and the “administrative power”, conferred by Article 208 of the Constitution, along with the relevant Rules. The honourable Court concludes that while the Constitution prohibits a writ to be issued against a High Court in regards to “judicial order or judgment”, on the other hand “a writ may lie against an administrative/consultative/executive order passed by the Chief Justice or the Administration Committee, involving any violation of the Rules framed under Article 208, causing infringement of the fundamental rights of a citizen.” And, in this regard, since the Registrar is not part of the definition of a “High Court”, under Article 192 of the Constitution, all orders passed by Registrar are also subject to judicial review.
As a result, the honourable Supreme Court declared that the appointments made by the Chief Justice(s) of the IHC, in relaxation of the Rules, “on the face of the record… clearly reflected” non-transparency. Also, these were not done in a “just and equitable” manner, and nor were these done in order to avoid “undue hardships”, as required by the concerned Rules. As such, these appointments are thus illegal and unlawful.
Poignantly, the honourable Court observed that “If the torch bearers of justice are permitted to make appointments overlooking merits, the sanctity of the judicial system will be in peril.” And, “If the competent authority itself starts cherry picking by deliberately ignoring and overlooking meritorious candidates … then the image of the institution will be tainted beyond repair… [leading]… to distrust of the public in the judicial institution of the country.”
This judgment, which is an unequivocal condemnation of the incumbent CJ of IHC, and a former CJ of IHC (who, currently, is a judge of the honourable Supreme Court), is a bold departure from the past jurisprudence of the apex Court, which endeavored to close the doors of transparency in judicial administration. It is an audacious attempt, on part of the honourable Court, to distance itself from the (authoritarian) doctrine of ‘Pater Familias’ that polluted our jurisprudence, especially during the era of Chaudhary Court. It marks a giant leap towards accountability in judicial administrative procedures, and must be welcomed as such.
However, there are a number of unanswered questions that now need deliberation: in light of this judgment, can all non-judicial orders of the respective Chief Justices, and Registrars, now be challenged in writ jurisdiction? Does a litigant who is aggrieved of the Case Management System, now file a writ before the concerned High Court? Can case allocation and marking be challenged on this touchstone? Better yet, can bench formation be challenged, under Article 199 of the Constitution?
And what about the judicial nomination process? After all, subjective nominees of the Chief Justice are recommended for elevation in exercise of non-judicial authority. Can these appointees and recommendations be challenged in writ jurisdiction?
Also, has the process concluded, or will there be consequences for the concerned judges? Having declared these appointments to be an exercise of “cherry picking”, carried out in an illegal and non-transparent manner, will Article 209 proceedings be initiated against the concerned Chief Justice(s)? And if so, will these judges be singled out, or will similar actions be taken against all other Chief Justices (some still serving on the honourable Supreme Court), who have made administrative appointments in relaxation of the concerned Rules?
These are interesting times for our jurisprudence. The move towards transparent exercise of administrative authority, even by judicial officers, is a welcomed development. However, the process must be completed to its logical conclusion. And for that, the honourable Court still has some very touch choices to make.