Constitution of Pakistan: Executive Authority Can Only be Exercised by Elected Representatives - High Court of Sindh at Karachi (Pakistan) Rules
IN THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No. D-3980 of 2016
Mr. Justice Sajjad Ali Shah, CJ
Mr. Justice Zulfiqar Ahmad Khan, J
J U D G M E N T
SAJJAD ALI SHAH, C.J. : The Petitioner through the instant petition has challenged the appointment of the Respondent No.4 (Barrister Murtaza Wahab Siddiqui) as Adviser to the Chief Minister Sindh with the portfolio of Law, Enquiries and Anti-Corruption Establishment, the Chairman, Board of Governors for Law Colleges in Karachi as well as Pro Vice Chancellor of Shaheed Zulfiqar Ali Bhutto University of Law. The Petitioner additionally after removal of Respondent No.4 from the position of Chairman, Board of Governors for Law Colleges seeks the reconstitution of the Board.
The Petitioner initially had challenged the Notification No.SOVI(SGA&CD)13(130)/2015 and No. SOVI(SGA&CD)13(130/2015 dated 30.04.2015 and 21.05.2015 respectively whereby the Respondent No.4 was appointed as Adviser to the Chief Minister and subsequently was conferred with the portfolio of Law and was assigned the status of Provincial Minister. However, during the pendency of the instant petition, there was a change in the office of the Chief Minister and consequently two fresh Notifications bearing No. SOVI(SGA&CD)2-1/2016 and SOVI(SGA&CD)2-1/2016 both dated 30.07.2016 were issued whereby, the Respondent No.4 was again appointed as Adviser to the Chief Minister and was conferred with the portfolio of Law, Enquiries and Anti-Corruption Establishment with the status of Provincial Minister, etc.
Mr. Dayo while referring to the provisions of Articles 90 to 93 and Articles 129 to 131 of the Constitution which deal with the Federal and Provincial Government respectively contended that the Constitution provides a well-structured mechanism for the use of executive authority whereby the executive authority of the Federation is to be exercised in the name of President but through the Prime Minister (a chosen representative of the people) either directly or through the Federal Ministers (which are also the chosen representatives of the people). The Constitution further provides that there shall be a Cabinet of Ministers with the Prime Minister as it head to aid and advise the President in the exercise of his functions. Such Cabinet as provided in Clause (6) of Article 91 shall collectively be responsible to the Senate and the National Assembly. The Constitution, further per Article 93 provides that the President on the advice of the Prime Minister can appoint no more than five Advisers on such terms and conditions as he may determine and by virtue of Clause 2 (which provides for the application of Article 57 to an Adviser), such Advisers have the right to speak and otherwise take part in the proceedings of either house or a joint sitting but are not entitled to vote. Likewise, the executive authority of the Province though is exercised in the name of Governor but through the Chief Minister (again a chosen representative of the people), either directly or through provincial ministers. In the same pattern as provided for the Federal Government, the Constitution also provides for a Cabinet of Ministers with the Chief Minister as its head to aid and advise the Governor in the exercises of his functions. Again, just like the Federal Government, the Cabinet of the Provincial Ministers is collectively held responsible to the Provincial Assembly. Clause (11) to Article 130 empowers the Chief Minister to appoint not more than five Advisers, but contrary to the scheme provided for the Federal Government there is nothing in the Constitution in terms of which the Provincial Advisers have right to speak and/or to take part in the proceedings of the Provincial Assembly. It was contended by Mr. Dayo that the conferring of the portfolios of Law, Enquiries and Anti-Corruption Establishment and the grant of status of Provincial Minister upon the Respondent No.4, amounts to exercise of the executive authority by an Adviser who is a handpicked individual and not a chosen representative of people, which is against the mandate given to the Chief Minister and which is in violation of the scheme of Constitution which requires the exercise of executive authority through chosen representative of the people only, who before entering their office must also take oath of performing their functions, honestly and to the best of their ability, faithfully in accordance with the Constitution of Islamic Republic of Pakistan as provided in the Third Schedule of the Constitution, whereas, the Advisers neither are under the oath nor are answerable to the Cabinet or the Assembly thus can act scot-free. Mr. Dayo while referring to the preamble of the Constitution contended that the entire scheme of the Constitution requires the exercise of executive authority through the chosen representative of the people and therefore, exercise of the executive authority by the Respondent No.4 who is a non-elected person, is blatant violation of the Constitution.
Mr. Dayo, further while referring to Article 140 of the Constitution, as well as Rule 4 of the Conduct of the Legal Affairs of the Government argued that it is the duty of the Advocate General (who is the principal law officer of the Province) to give advice to the Provincial Government upon such legal matters and to perform such other duties of a legal character as may be referred or assigned to him by the Provincial Government and therefore, in the presence of the Advocate General there was no room for the appointment of the Respondent No.4 as an Adviser on law. Mr. Dayo further contended that though the Constitution empowers the Chief Minister to appoint not more than five Advisers but such power in the absence of any criteria provided for is to be exercised justly and fairly and not to accommodate the party loyalists. Per counsel, the Respondent No.4 only holds a law degree with mere six years standing at the bar and had no pre-requisite qualification even for the appointment of an Adviser let alone the most important portfolio of Law, Enquiries and Anti-Corruption Establishment be given to him. At the end, Mr. Dayo argued that with such meager qualifications, the Respondent No.4 has been additionally appointed as Chairman, Board of Governors for Law Colleges of Karachi which position was always adorned by renowned jurist or educationists such as Vice Chancellor of Karachi University or Law Ministers with long standing at Bar and lastly by Mr. Farooq H. Naek, Senior Advocate Supreme Court who remained Law Minister, Chairman Senate and Acting President of Pakistan. Per Counsel, even the Members of the Board are senior advocates, Advocate General, Law Secretary and a High Court Judge (as a nominee of the Chief Justice) and therefore, the appointment of a law graduate with only six years’ standing is blatant and rude misuse of the authority. Mr. Dayo further submitted that the Respondent No.4 has also been appointed as Pro Vice Chancellor of Shaheed Zulfiqar Ali Bhutto University of Law, which is against the spirit of Board of Governors’ notification dated 07.08.1978. Mr. Dayo informed the Court that the Respondent No.4 is even attending the meetings of the Judicial Commission of Pakistan which in accordance with Article 175-A(5)(iii) could only be attended by the Provincial Law Minister and not by an Adviser. Mr. Dayo in support of his submission placed reliance on the Judgments as Ahmad Yousuf Ali Rizvi Vs. Munawar Ali Butt (PLD 2000 Karachi 333), Shah Ahmed Khan Vs. Government of Punjab (PLD 2007 Lahore 191), American International School System Vs. Mian Muhammad Ramzan (2015 SCMR 1499), Abdul Haq and others Vs. Province of Sindh and others (PLD 2000 Karachi 224) and Karachi Cooperative Housing Societies Union Ltd Vs. Government of Sindh and others (1990 MLD 389). He accordingly prayed that both the notifications No. SOVI(SGA&CD)2-1/2016 and SOVI(SGA&CD)2-1/2016 dated 30.07.2016 as well the Respondent No.4’s appointment as Chairman, Board of Governors of Law Colleges, as well as, Pro Vice Chancellor, Shaheed Zulfiqar Ali Bhutto University of Law be declared illegal and be quashed.
On the other hand, Mr. Makhdoom Ali Khan, Learned Counsel for the Respondents No.1 by opening his line of arguments, raised few preliminary objections, which included that prayer clauses (c), (e), (f) & (g) relate to the appointment of the Respondent No.4 to the Board of Governors, and with regards prayer clause (a) and (b), learned counsel submitted that these two impugned Notifications dated 30.04.2015 and 21.05.2015 have already been superseded by Notifications dated 30.07.2016, therefore, technically speaking these notifications are no more in the field. After raising these preliminary objections, the learned counsel’s entire thrust was towards the two Notifications of 30.07.2016, in terms whereof the Respondent No.4 was appointed as an Adviser and simultaneously through the other Notification of the even date, he was given portfolio of Law, Enquiries and Anti-Corruption Establishment. The learned counsel vehemently argued that the petitioner is not an aggrieved person under Article 199 of the Constitution and since no occasion or cause of action has accrued in his favour to institute the instant Constitutional petition, and since no personal loss has occurred nor any order has been passed which had created or taken away any right or benefit of the Petitioner, therefore, he has no locus standi to file the instant petition. In support of his contention he placed reliance on a number of case-law.
Without getting into the details of the cases cited by the learned counsel, his attention was drawn to the fundamental principle laid down in the case of Shah Ahmed Khan Vs. Government of Punjab (PLD 2007 Lahore 191) where the Court held that in cases where State is in violation of any provision of the Constitution, every citizen is aggrieved and can competently bring a Constitutional petition. Thereafter, the learned counsel very methodologically and meticulously led us through various articles of the Constitution and to the provisions of the Sindh Advisers (Appointment, Powers, Functions, Salaries, Allowances and Privileges) Act, 2003 and to the Sindh Government Rules of Business, 1986 to show that neither the Constitution; the 2003 Act nor the Rules of Business prescribe any qualification or criteria for the appointment of Advisers, therefore, the Chief Minister has absolute, unhindered and unchallengeable authority to appoint any person as his Adviser. To assist us, the learned counsel took us to Section 4(1) & (2) of the said 2003 Act, which we reproduce hereunder:
“4(1). The Chief Minister may, in his discretion from time to time advise the Governor to appoint such number of persons as he considers necessary, to be Advisers who shall hold office during the pleasure of the Chief Minister.
(2) An Adviser shall exercise such powers as may be delegated and perform such functions as may be assigned to him by the Chief Minister.”
Explaining the aforesaid provisions, the learned counsel stated that it is wholly, solely and unconstrained pleasure of the Chief Minister as to whom he considers fit to appoint him/her as an Adviser. The learned counsel took us to Rule 7(ii) of the Rules of Business, which we reproduce hereunder:
“7(ii). The Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to a Minister or an Adviser or Secretary of that Department.”
Through a combined reading of the above reproduced provisions, the learned counsel contended that the power of the Chief Minister to appoint an Adviser is not hindered by any prescribed criteria or qualification, therefore, he (for example) in principal can actually appoint a Milkman to be a Law Adviser, if he pleases to do so. Subsequent thereto, the learned counsel took us to various Articles of the Constitution, which set different offices and departments to show that in fact no qualification is even required for many of the other Constitutional posts envisaged through the length and breadth of the Constitution.
In respect of Article 41, the learned counsel submitted that the post of President does not prescribe any educational qualification and similar is the case for the Speaker, Deputy Speaker of National Assembly, Chairman and Deputy Chairman of the Senate, Prime Minister, the Cabinet, Federal Minsters and Minsters of the State etc., and to the extent that under Article 242 (1A) and (1B), there is no prescribed qualification for the Chairman of the Public Service Commission, therefore, per counsel, there should not be any surprise if the Constitution does not prescribe any qualification for the appointment of Adviser under Article 130(11) by the Chief Minister or under Article 93 by the Prime Minister. With regards age, the learned counsel presented the case of Judges of the High Courts viz-a-viz the Hon’ble Judges of the Supreme Court and relying on Articles 177 and 193 submitted that while there is a requirement of age for the Judges of High Courts (of 45 years), there is no restriction on the age of the Judges of the Hon’ble Supreme Court. Similarly, taking the example of the President and the Prime Minister, the learned counsel submitted that while a person of above 25 years of age can be appointed as a Prime Minister, the age for the President is prescribed as no less than 45 years, though the President has to act on the advice of the Prime Minister. By these examples, the learned counsel attempted to persuade us that while a legislation can fail the test of logic, but it has to be followed because that was the intention of law makers, and in the case of Constitution, the founding fathers. Following this analogy, the learned counsel took us to visit Articles 62 and 63 of the Constitution to show that there are no educational qualification prescribed for the Members of the Parliament or for the Ministers. Of special mention was the power of the President under Article 45, which per learned counsel is across the board and cannot be questioned as well as it is beyond any judicial scrutiny. In support of these assertions he placed reliance on Hakim Khan Vs. Government of Pakistan (PLD 1992 SC 595), Bhai Khan and others Vs. the State (PLD 1992 SC 14), Ghulam Hussain Vs. The State (1999 YLR 1596) and Abdul Malik Vs. The State (PLD 2006 SC 365). By these submissions, the learned counsel attempted to draw a parallel between the absolute (beyond judicial scrutiny) powers which a Chief Minister enjoys for the appointment of the Advisers since there are no qualifications prescribed by the Constitution nor any other piece of legislation for such and appointment.
To answer the complaint about shortcoming of qualifications and experiences of the Respondent No.4, who only has six years standing at the Bar, the learned counsel submitted that Justice William O Douglas, a leading judge of the US Supreme Court who served the Supreme Court for over 36 years, had only practiced law for no more than a few months. Having (to his satisfaction) established that there are no qualifications prescribed for the appointment of the Advisers, as well as, such an act of the Chief Minister being beyond the legal scrutiny, the learned counsel presented the Court with “Judicially Manageable Legal Standards” test. Elaborating on this, the learned counsel contended that Courts can only intervene where there are judicially manageable legal standards through law or where malice or irrationality is obvious in the acts of the executive, or where the authority seeming to have taken leave of his senses, which, per counsel, is not the case at hand. In support of his assertions, the learned counsel placed reliance on Federation of Pakistan Vs. Saeed Ahmad Khan (PLD 1974 SC 151), Dr. Akhtar Hassan Khan Vs. Federation of Pakistan (2012 SCMR 455), Assocaited Provincial Picture Houses Ltd. Vs. Wednesbury Corporation [1974 (2) AELR 680}, Council of Civil Service Unions and others Vs. Minister for the Civil Service [1984 (3) AELR 935] and Nottinghamshire CC Vs. Secretary of State for the Environment [1986 (1) AELR 199]. Thrust of this line of arguments was once again that unless an act on the face of it is unconstitutional or illegality, malice or irrationality is patently obvious, Courts ought to keep their hands off from such acts, until unless the Courts come to a conclusion that the act was done by the person who has taken leave of his senses.
At the final leg of his arguments, intending to cement his assertions, the learned counsel put forward to this Court the principle of Casus Omissus, which provides that if a situation is not provided for by a statute or a regulation, Courts cannot add words in the legislation and such act would amount to usurpation of the power of the legislator. In support of such contentions, the counsel placed reliance on Muhammad Ismail Vs. The State (PLD 1969 SC 241), Dr. Zahid Javed Vs. Dr. Tahir Riaz Chaudhary (2016 PLD SC 637) and Zahid Iqbal Vs. Hafiz Muhammad Adnan and others (2016 SCMR 430).
On the other hand, Mr. Umer Lakhani Advocate appearing for the Respondent No.4 and Mr. Mustafa Maheser, AAG both adopted the arguments of Mr. Makhdoom Ali Khan. On our query as to why the Advocate General is not appearing, learned AAG stated that since there could be the possibility of perceivable conflict of interest, therefore, Advocate General has volunteered to not to appear, but would be at the service of the Court if Court deems it necessary he will be present. After the parties concluded the arguments, Mr. Zameer Ghumro, learned Advocate General appeared and submitted that the provisions of the Constitution are very clear and Article 140(2) of the Constitution entrust the duty upon the Advocate General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character as may be assigned to him by the Provincial Government.
Heard the counsel and perused the record. It appears that the Petitioner’s grievances emanate at four occasions, which are listed hereunder:
1. The appointment of Respondent No.4 as an Adviser to Chief Minister vide Notification dated 30.07.2016;
2. The allocation of portfolio of Law, Enquiries and Anti-Corruption Establishment to the Respondent No.4 vide Notification dated 30.07.2016;
3. The appointment of Respondent No.4 as Chairman of Board of Governors of Law Colleges in Karachi made through Notification dated 27.04.2016; and
4. The appointment of the Respondent No.4 as Pro Vice Chancellor of Shaheed Zulfiquar Ali Bhutto University of Law.
Since the very foundation of the grievance of the Petitioner finds its roots from the appointment of Respondent No.4 as an Adviser under Article 130(11) of the Constitution, we find it appropriate to dilate on this aspect at the very forefront. To commence our analysis, it is apt that we look into the Constitutional provisions with regard to the appointment of Advisers. The Constitution envisages two types of Advisers. First type is the one specified under Article 93 (that became part of the Constitution by P.O. No.14 of 1985) which relates to the Advisers appointed by the Prime Minister. To look at this type of Adviser, we reproduce full text of the said Article in the following:
“93. (1) The President may, on the advice of the Prime Minister, appoint not more than five advisers, on such terms and conditions as he may determine.
(2) The provisions of Article 57 shall also apply to an Adviser.”
Since the above referred Article makes a reference to Article 57, we find it prudent to reproduce the same to give a complete picture as to the privileges of the Advisers appointed by the Prime Minister.
“57. Right to speak in Majlis-e-Shoora (Parliament). The Prime Minister, a Federal Minister, a Minister of State and the Attorney General shall have the right to speak and otherwise take part in the proceedings of either House, or a joint sitting or any committee thereof of which he may be named a member, but shall not by virtue of this Article be entitled to vote.”
A combined reading of the above two Articles reflect that Advisers appointed under Article 93 upon the advice of the Prime Minister have the privileges provided under Article 57 of participating, speaking and otherwise taking part in the proceedings of either House. With this scheme of Constitution, we now look into the methodology provided for the appointment of Advisers to the Chief Minister. The only provision of the Constitution which deals with the Advisers appointed by the Chief Minister is embodied in the shape of Article 130(11) of the Constitution, which is reproduced in the following:
130 (11). The Chief Minister shall not appoint more than five Advisers.
A comparative reading of the provisions regarding appointment of Advisers by the Prime Minister viz-a-viz the Chief Minister suggests that the Advisers, which are appointed by the Prime Minister under Article 93 have a Constitutional mechanism of providing terms and conditions (to be determined by the President), whereas no such language is provided for the appointment of Advisers under Article 130(11) by the Chief Minister which makes it a mere master/servant relationship. Also the privilege of Article 57 extended to the Prime Minister’s Advisers of speaking and otherwise taking part in the proceedings of the either House is not extended to those Advisers appointed by the Chief Minister. As mentioned earlier, it is also important to note that the inclusion of the concept of Advisers for the Prime Minister under Article 93 was made by the amendment in the Constitution in the year 1985 (P.O No.14/1985 Article 2, Schedule Item 20), whereas the provision for appointing Advisers for the Chief Minister was only brought into the Constitution through the 18th Amendment in the year 2010.
With above findings, we now attempt to deal with the arguments put forward by the learned counsel for Respondents No.1 that Constitution is absolutely silent as to the criteria or qualification for the appointment of Advisers to the extent that a Milkman can be appointed as an Adviser on Law. In support of his assertions, the learned counsel reiterated his earlier contention that in cases where there are no legally manageable standards, the Court cannot fill the gap or prescribe any criteria and pre-requisite qualifications on the basis of the doctrine of casus omissus. In support of his contentions with respect to the application of the principle of casus omissus, the learned counsel placed reliance on the following case-law:
i). Federation of Pakistan Vs. Saeed Ahmed Khan
(PLD 1974 SC 151)
ii). Dr. Akhtar Hassan Khan Vs. Federation of Pakistan
(2012 SCMR 455)
iii). Watan Party Vs. Federation of Pakistan (PLD 2006 SC 697)
iv). Associated Provincial Picture Houses Ltd Vs. Wednesbury Corporation [1947 (2) All ELR 680]
v). Council of Civil Service Unions and others Vs. Minister for the Civil Service [1984 (3) All ELR 935]
vi). Nottinghamshire Country Council Vs. Secretary of State for the Environment [1986 (1) All ELR 199]
vii). The Chairman East Pakistan Railway Board Vs. Abdul Majid Sardar (PLD 1966 SC 725)
viii). Abdul Majeed Pirzada Vs. Federation of Islamic Republic of Pakistan (PLD 1990 Karachi 9)
xi). Executive District Officer (Revenue) District Khushab at Jauharabad Vs. Ijaz Hussain (2012 PLD CD 917)
x). Ghulam Rasool Vs. Government of Pakistan (PLD 2015 SC 6)
xi). Muhammad Ismail Vs. The State (PLD 1969 SC 241)
xii). Dr. Zahid Javed Vs. Dr. Tahir Riaz Chaudhry (2016 PLD SC 637)
xiii). Zahid Iqbal Vs. Hafiz Muhammad Adnan (2016 SCMR 430)
At this juncture, we in the open Court expressed our views that the Court has no intention whatsoever to lay down or prescribe any criteria or qualification for the appointment of Advisers by the Chief Minister. Further, following the dictum laid down in the case of American International School System (supra) where the Apex Court laid down the principle that the Chief Minister, under his Constitutional dispensation is neither a King nor a Monarch but, is in the domain of trust and under Article 5 of the Constitution, he is obliged to obey the Constitution and law like any other ordinary citizen, and with regard to the exercise of the executive authority, the Apex Court held that his discretion is neither brazen nor arbitrary but subject to the Constitution, since he has taken the oath to discharge his duties and perform his functions solely in accordance with the Constitution of Pakistan.
Before we proceed, a few words about causes omissus, which literally means ‘case omitted’. Application of the said principle is that a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not interpretation which is not function of the courts. But it is important to note that the doctrine applies to an eventuality or situation not provided for by the statue and therefore, governed by case law or (new) judge-made law. The classic rule in that court will not fill the gap in the statue as their functions are jus dicere and not jus dare i.e. to declare or decide the law. Also to keep in mind is that the said doctrine outlines the circumstances where a court can supply a clearly unintended omission by the legislature in drafting a particular provision, thus court’s hands are not completely tied, but it is only applicable when legislation has enlisted certain possibilities but missed a few ones. However the matter at hand does not warrant application of the doctrine of casus omissus since the legislature has (willfully) totally and completely omitted to incorporate criterion or qualification of an Adviser in plain and unambiguous terms and no eventuality is left (unattended) which may call for the interpretation by analogy or implication of this court under the general principles of justice and equity, therefore, any discussion of the cases cited by the learned counsel on the restriction caused to this court on account of casus omissus would be an exercise in futility.
We, as mentioned in the aforesaid, while being mindful of not intending to add any qualification or criteria in the instant case for the appointment of an Adviser and restricting ourselves solely to the Constitution, where as per the submissions made by the learned counsel of the Respondent No.1 there are no specific provision providing eligibility criteria and qualification of an Adviser to be appointed under Article 130(11), pose a question to ourselves that wouldn’t such an appointment (of Adviser) at least attract the general principles of probity and good governance (and transparency) which forms basis of all acts done by an authority? To understand the duty of probity to be exercised by the Chief Minister, let’s first take a look as to what does the word “Adviser” mean in plain English. Oxford Dictionary of England defines an Adviser to mean a person who gives advice in a particular field. The word “advice” by the Oxford dictionary is given to mean “guidance or recommendations offered with regard to prudent action” and the word “prudent” means “acting with or showing care and thought of the future”. The combined reading of the above dictionary meanings depict that an Adviser is a person, who based on his prudence and thoughtfulness would be called upon for giving guidance and recommendations with regard to a futuristic action. Therefore, any person to be appointed as an Adviser under Article 130(11) should be able to satisfy this fundamental and basic requisite, as anticipated by the ordinary meanings of the word ‘Adviser’.
Coming back to the duty of probity and good governance as mandated from a person who is at the helm of affairs of running of the Provincial Government (i.e. the Chief Minister), whosoever he appoints as an Adviser under Article 130(11), the incumbent thus has to fulfill the above referred basic requisite. At this juncture, it is also worth revisiting how the Apex Court dilated upon the powers of Chief Minister in the case of American International School System (supra) and held that the Chief Minister, under the Constitutional dispensation is neither a King nor a Monarch and he is obliged to obey the Constitution and law like any other ordinary citizen since he has taken the oath to ‘discharge his duties and perform’ his functions solely in accordance with the Constitution. Now reverting to the statement of the learned counsel for the Respondent that a Milkman can be appointed as an Adviser on Law, we for the reasons detailed in the forgoing do not agree with such a contention, as probity and good governance demand that the Adviser must has to fulfill the intent and purposes demanded from such a person within four corners of the Constitution, and if the executive authority (i.e the Chief Minister) appoints a Milkman as an Adviser, that only could be for two reasons; (i) that he must have taken leave of his senses, or (ii) such an appointment of Milkman is either to give favors or has resulted from any fears. At this juncture, it would not be out of context to look at the oath of the office of the Chief Minister as provided in the Third Schedule of the Constitution under Article 130(5) of the Constitution. While taking the oath of the office of the Chief Minister, he solemnly swears that he will be exercising such powers honestly and in well-being and prosperity of Pakistan and will do right to all manner of people, according to law, without fear or favour, affection or ill-will. So the conclusion from foregoing could be drawn that for the very purposes and intents, the Constitution does prescribe the requisites for the anticipated appointment of the Adviser under Article 130(11) and does not leave it open to the Chief Mister to appoint any person as an Adviser who does not fulfill the intent or purpose as extruded out of the Constitution, unless he has done so for any fear and favor.
At this point we also wish to distinguish that all the examples given by the learned counsel for the Respondent with regard to absence of any criteria and qualification related to positions of chosen representatives which were assigned specific job within the four corners of the Constitution and not in relation to handpicked individuals, which is the case at hand. Further, since the fundamental requirement of the principle of democracy is that no restrictions could be imposed on to the will of the people to choose their elected representatives, Constitution as well as legislature has made no attempt to restrict such desire of the people at large. However whenever a person is appointed (who was not a public representative) and in particular when his remuneration and allied expenses are paid from the public exchequer, it becomes very important that the authority which is handpicking that individual in question has to ensure that the individual’s selection fits every bit of the purposes and intents for which the said appointment is being made making sure that the rule of ‘right person for the right job’ becomes evident from every nook and corner of such an appointment, since it is not the matter of public money only, it is the matter of public perception as to the rule of law and respect of merit which should be seemed to have been slaughtered in the hands of the authority. Thus for the appointment of the handpicked Advisers under Article 130(11), while Chief Minister has the apparent unhindered Constitutional privilege of appointing them, but such power should never be seen to have been exercised by the Chief Minister in a manner as if he is a Monarch or a King not answerable to anyone as he carries the trust of those who elected him to make decisions solely on merit and not on account of any favor or fear.
In the above controversy where the Respondent No. 4 has been appointed as an Adviser to advice the Chief Minister on matters related to law and has been given portfolio of not only of Law Minister, but has also been given executive authority to oversee certain departments pursuant to Notification dated 30.07.2016, the issue as to the mandate and authority of providing legal advice to the Provincial Government also arose during the arguments. Reference was made to Article 140 of the Constitution, of which clauses (1), (2) and (3) are reproduced hereunder:
140. Advocate General for a Province
(1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate General for the Province.
(2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government.
(3) The Advocate-General shall hold office during the pleasure of the Governor [and shall not engage in private practice so long as he holds the office of the Advocate-General].
As it could be seen that the Constitution envisages the Advocate General to give advice to the Provincial Government on the matters related to law and to perform such other duties of a legal character. It is also relevant at this point to recall Article 111 of the Constitution, where it is the Advocate General, who has been granted right to speak and otherwise take part in the proceedings of the Provincial Assembly or any Committee thereof and no such role is envisaged for a Provincial Adviser within the four corners of the Constitution. Also to examine here is that the Advocate General pursuant to Clause (3) of Article 140 is barred from engaging into private practice of law, but no such bar is imposed on the Advisers, which in fact brings a new dimension to the appointment of the Respondent No.4 that an Adviser has no bar in remaining engaged in his private legal practice, which one can easily imagine could create serious conflict of interest situations.
While the learned counsel for the Respondent No.1 and No.4 gave historical examples of judges of the US Supreme Court having been appointed at a younger ages with very little court experience, since that issue is not before us, we do not find any reason to make any comment thereon, notwithstanding that we do not see how that is relevant in the instant case, where no reply has been made against the deficiencies alleged by the Petitioner with the Respondent No.4’s appointment as Adviser as no proof as to his suitability for the instant Constitutional position has been provided making him the person, who based on his prudence and thoughtfulness would be called upon by the Chief Minister for giving guidance and recommendations with regard to a futuristic action in respect of legal matters faced by the Government of Sindh, particularly for which the statutory person Advocate General is already present. Notwithstanding therewith, it is interesting to note that the day Respondent No.4 was appointed as an Adviser, at the same moment, he was simultaneously given the executive authority of the ministry of law and of other departments (as per notification dated 30.07.2016) meaning thereby he in fact was never appointed as an Adviser for the intent and purposes of Article 130(11), rather his induction was for the exercise of the executive authority (which he has been exercising since that date) therefore his appointment ab-initio was not of an Adviser, rather Constitutional framework was skewed to pass on the executive authority held by the Chief Minister in trust for the elected representatives unto the Respondent No.4, thereby Constitutional framework was blatantly circumvented.
For the aforesaid reasons, the appointment of the Respondent No.4 as an Adviser on Law being devoid of the intent and purposes as envisaged by the Constitution and as well as being superfluous on the ground that the Advocate General is the person competent for the job, we declare the said appointment void ab-initio and of no legal effect
Having given our findings as to the appointment of the Respondent No.4 as an Adviser on Law, we now revert to the Question No.2 as to the allocation of portfolio to him vide Notification No.SOVI(SGA&CD)2-1/2016 dated 30.07.2016 and commence our journey in this direction by looking at the Preamble of the Constitution, which in its third paragraph provides as under:-
Wherein the State shall exercise its powers and authority through the chosen representatives of the people; [emphasis supplied]
Having noted the very intention of the Constitution that power and authority has to be exercised through the chosen representatives, attention could now be diverted to Article 90 wherein the executive authority of the federation is mandated to be exercised in the name of President by Prime Minister and by Federal Minister and Prime Minister is designated as Chief Executive of the Federation. Article 91 provides formation of Cabinet of Ministers making Prime Minister as head of the Cabinet to discharge the executive authority mandated under Article 90 of the Constitution. Clause (6) of Article 91 provides that “the Cabinet, together with Ministers of State, shall be collectively responsible to the Senate and the National Assembly.” Also of significance is the study of Clause (9) of Article 91 which provides that a minister who for any period of six consecutive months is not a member of the National Assembly shall, at the expiration of that period, cease to be a minister and shall not…..be again appointed a minister unless he is elected a member of that assembly. A combined effect of the above provisions is that the Constitution makes it crystal clear that the executive authority could only be exercised by the chosen representatives and in case a person who was not a chosen representative (i.e. not a member of the national assembly) and he was given any executive authority such (undesirable) authority shall not be exercised by that person for more than six month from the date of his appointment during the whole term of the national assembly, unless he is elected.
With regard the Provincial Government, Article 129 forms the very basis of giving the executive authority of the Province in the hands of the Chief Minister. Under Clause (1), which is pari materia with Article 90, executive authority of the Province is mandated to be exercised in the name of the Governor by the Chief Minister. Also of relevance is clause (2) of the said Article 129, which envisages that in the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers. Also worth pointing out is Article 130(1), in terms of which the Provincial Cabinet of Ministers is formed. Under the said clause, Cabinet of Ministers (being headed by the Chief Minister) are required to aid and advice the Governor. As provided for the Federal Government, the Provincial Government’s Cabinet under Article 130(6) is held to be collectively responsible to the Provincial Assembly. Also of interest is the replica reproduction of Article 91(9) in the form of Article 131(9) which in pari materia terms also prohibits a provincial minister who for any period of six consecutive months is not a member of the Provincial Assembly to cease to be a Minister after the expiry of the said term of six months and dictates that he shall not to be given any executive authority of any further term in the life of the Provincial Assembly, unless he is elected. This also require taking note of Clause (1) of Article 132 which provides that the Governor (subject to clauses (9) and (10) of Article 130) would appoint Provincial Ministers from amongst members of the Provincial Assembly on the advice of the Chief Minister. Once again, the Constitution hammers the call for the appointment of the ministers from the chosen representatives only, and none else.
A little off the track, but still in line with the controversy at hand, reference is also made to Article 138 of the Constitution wherein functions upon subordinate authorities are conferred. Per Article, on the recommendation of the Provincial Government, the Provincial Assembly may by law confer functions upon officers or authorities subordinate to the Provincial Government. In terms of this provision, executive powers can only be conferred upon ‘any officers or authorities subordinate to the provincial government’ and none else. Thus no executive authority could be entrusted upon the Advisers under this Article also.
From the foregoing, it becomes obvious that the Constitution in its four corners very tightly preserves the essence of a democratic system which revolves around the age old principle of “government of people, by the people and for the people”. The Constitution, therefore, fully respects the mandate given by the people to their chosen representatives and restricts that any and all executive authorities ought to be exercised by the elected representatives so they exercise the executive authority for the people. It is also important to point out that the Constitution not only requires the executive authority to be exercised by the elected representatives, it also prescribes that these elected representatives to take oath to bind themselves further before embarking with any executive authority.
As established hereinabove, wherever the Constitution gives authority to the Federal Government or to the Provincial Government, it only envisages that such executive authority will be exercised by the Prime Minister through his Federal Ministers or Cabinet of Ministers, and for the Provincial Government, the scheme is pretty much identical that such authority is to be exercised by the Chief Minister himself or through his Ministers, exercising such authority in his name.
With the above communality established, it is also to be noted that immediately after the said mechanism having provided for the exercise of the executive authority either by Federal Government or by the Provincial Government, provisions for the appointment of the Advisers have been made. These provisions, as detailed in the earlier part hereof enable appointment of Advisers to the Prime Minister under Article 93 and under Article 130(11) Advisers for the Chief Minister are appointed. One common factor to take cognizance of is that neither in the Federal Government, nor in the Provincial Government any executive authority is entrusted upon the respective Adviser, rather, being a non-elected individual Articles 91(9) and 129(9) do not see any executive authority to be exercised by such an individual beyond a period of six months.
At this juncture it is extremely relevant to mention that the Constitution does not provide for taking of oath from a Federal or Provincial Adviser, meaning thereby the Adviser (as a non-elected individual) is neither answerable to the assembly, cabinet, any constituency, nor binds himself through any oath. That’s is the very reason, the Constitution does not encapsulate any possibility of an Adviser to exercise executive authority, because such an exercise will be violative of the fundamental principles of democracy and any act of giving any executive authority to an Adviser would seem to show as if democracy is at war with itself since it would be an attempt to place non-elected persons at the helm of affairs to discharge the executive authority; which the Constitution solely reposes on the shoulders of the elected representatives which are additionally bound by the oath of their respective offices.
With these founding principles as forming the backbone of the democratic framework of the government, as enshrined by the Constitution, it would be the most opportune time to look into the provisions of the Sindh Government Rules of Business, 1986 where through an amendment dated 27.06.1989 provisions regarding appointment of Advisers were made. Full text of relevant section 6 of the said Rules is reproduced hereunder:
6. Appointment of Advisers, and Special Assistants
(i) The Governor may in accordance with the advice of the Chief Minister appoint --
(a) a Special Assistant to the Chief Minister;
(b) an Adviser to the Chief Minister in respect of a Department.
(ii) The Chief Minister may delegate all or any of the powers of Minister to such Adviser. [Emphasis supplied]
Also of relevance is Rule 7(ii) which has pari materia provisions and we reproduce the same hereunder:
The Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to a Minister or an Adviser or Secretary of that Department. [Emphasis supplied]
As it could be seen, provisions of Rule 6(ii) and 7(ii) are in direct conflict with the scheme of democratic government as enshrined by the Constitution where right to the exercise of the executive authority is solely reposed on the elected representatives, however pursuant to the above quoted provisions of the Sindh Government Rules of Business 1986 the Chief Minister has been given the authority to delegate exercise of the executive authority unto his Advisers, of which neither any room is made in a democratic setup, nor in the Constitution. Accordingly in our considered view Rule 6(ii) in toto and Rule and 7(ii) to the extent of delegation of powers to the Advisers are ultra vires of the Constitution, thus void ab-initio and of no legal effect.
Also of relevance at this juncture is to examine the applicable provisions of the Sindh Advisers (Appointments, Powers, Functions, Salaries, Allowances and Privileges) Act, 2003. Relevant sub-section 4(2) of the said 2003 Act is reproduced in the following:
(2) An Adviser shall exercise such powers as may be delegated and perform such functions as may be assigned to him by the Chief Minister.
For the reasons put forward in holding Rules 6(ii) in toto and part of Rule 7(ii) of the Rules of Business 1986 to be ultra vires of the Constitution, similar treatment is also mandated by sub-section 4(2) of the said 2003 Act as it is enabling the unconstitutional and undemocratic act of the use of executive authority by an Adviser, so we accordingly hold the said sub-section 4(2) as ultra vires of the Constitution, thus void ab-initio and of no legal effect.
This view finds support from the leading case of Ahmad Yousuf Ali Rizvi vs. Munawar Ali Butt reported as PLD 2000 Karachi 333, wherein with regard to a property dispute, the Adviser to the Chief Minister passed an order in the year 1998 wherein he exercised powers of the Provincial Government under section 64-A of the Cooperative Societies Act, 1925. Since the Adviser exercised the powers under Rule 6(2) of the Government of Sindh Government Rules of Business, 1986, the question as to the validity of the delegation of these executive powers to the Advisers (under the said Rules of Business), as well as, the legal status of the Adviser surfaced. Since issues were of importance, a thorough examination was made in the said judgment as to the validity of the appointment, status and scope of functions of an Adviser appointed by the Provincial Government under the Rules of Business, 1986.
Before we proceed with the findings and dictum laid down in the above referred case, it is important to state that when that case was being decided in the year 2000, while the Sindh Government Rules of Business, 1986 were in the field, there was no provision for the appointment of Advisers by the Chief Minister in the Constitution as at that juncture under Article 130(11) (which only came through by the 18th Amendment in the year 2010), therefore Constitutional conceptualization of appointment of Advisers was solely limited to Article 93 in respect of the Prime Minister (except for the mention of the words “Adviser to a Chief Minister” under definition clause of Article 260(1)).
It is also worth mentioning that the Sindh Advisers (Appointment, Powers, Functions, Salaries, Allowances and Privileges) Act, 2003 was also not in the field, therefore the Adviser in question was only appointed under Rule 6(2) of the Sindh Government Rules of Business, 1986 and since that Adviser had exercised executive authority as described hereinabove, the Court considered the question as to the delegation and exercise of executive authority by the Adviser appointed by the Chief Minister under the Rules of Business, 1986 only.
Since the matter at hand partly is of similar nature, we wish to take full benefit of dictum laid down in the above referred judgment and reproduce a substantial part of the said judgment hereunder:
“9. The Constitutional history on the subject may be relevant and useful for the purpose. The National Assembly of Pakistan that gave the Constitution of Islamic Republic of Pakistan in 1973, appointed a Constitution Committee by a resolution, in April, 1972, to prepare and draft a permanent Constitution. The Committee submitted its report, along with the draft, giving outlines of the basic structure of the Constitution. It envisaged a Parliamentary system based on elected representatives of the people and a trichotomy of powers for Legislature, Judicature and the Executive. However, the Committee used the term Government for the Executive and it was carried on to the Constitution. The report provided that the executive authority of the Province shall be exercised by the Provincial Government consisting of the Chief Minister and the Provincial Ministers. It, thus, excluded any other appointee, like Adviser, from the meanings of Provincial Government. Accordingly, the original Constitution passed in 1973, did not recognize and Adviser, both at Federal as well as Provincial level.
10. The concept was introduced only through the Constitution (Sixth Amendment) Act, 1976, whereby “Adviser to the Prime Minister’ and Adviser to a Chief Minister’ were inserted in Article 260 in the definition of service of Pakistan”. Yet nothing was provided in the Constitution to authorize appointment of such an Adviser.
11. In 1985, through the Revival of the Constitution of 1973 Order (P.).14 of 1985) extensive amendments and substitutions were made in the Constitution. The Article relating to the Federal Government and the Provincial Governments were substituted and that introduced present Article 93 providing for the appointment of five Advisers at the Federal level. No corresponding provision was, however, made for the Provinces.
12. Insertion of an express provision for appointment of Advisers at the Federal level means that such an express provision was necessary to authorize such appointment. As an essential corollary, therefore, omission of such a provision in the case of provinces would mean a prohibition and inability in respect of appointment of an Adviser. An Adviser like that provided for in Article 93, cannot, therefore, be appointed in the Provinces.
13. It may, however, be noted that the Adviser provided for in Article 93 is not the same as Adviser to Prime Minister or Adviser to Chief Minister mentioned in Article 260. They are two different categories. When they were excluded from the definition of Service of Pakistan. Under the scheme of the Constitution, the functions of the Adviser appointed under Article 93, are limited to the Houses of Parliament. They are not included in the Federal Government as it was defined by the Constitution Committee to be consisting of the Prime Minister and the Federal Ministers. Moreover, to give powers of Ministers to an unelected Adviser, would be against the concept of elected Government envisaged by the Constitution.
14. Mention of Adviser to Chief Minister in Article 260 of the Constitution means that an Adviser to Chief Minister can be appointed, but the appointment can only be made on the authority given by an appropriate law viz., an enactment or a temporary substitute under Article 128 of the Constitution. But even if an Adviser to Chief Minister is appointed in exercise of powers conferred by an enactment, he cannot be given powers and functions of a minister as he is not a member of the Cabinet and it will be contrary to the scheme of the Constitution.
15. Under Article 139(3) of the Constitution, the Governor has been empowered to make rules for the allocation and transaction of the business of the Provincial Government. These rules cannot include power of any appointment because it is beyond the scope of the purpose, that is merely “allocation and transaction of the business of the Provincial Government”. Insertion of rule 6 was, obviously, on the basis of ill-advice and misconceived recommendation. Rule 6 of the Government of Sindh Rules of Business, 1986, being beyond the powers of the Governor conferred by Article 139(3) of the Constitution, is ultra vires, void ab initio and of no legal effect. Accordingly, the appointment of the Respondent No.1 was invalid and without lawful authority. Consequently, the impugned orders passed by this respondent are without lawful authority and of no legal effect. Petition is, accordingly, allowed to the extent and the matter is remanded to the respondent No.2 for proceedings and decision according to law.”
As it could be seen, the Court came to the similar finding and relying on the scheme contained within four corners of the Constitution which does not at all permit exercise of the executive authority by Advisers, Court not only held the appointment of the Adviser void, but also treated his acts as void ab in-initio. Notwithstanding the 18th amendment that brought Constitutional possibility of the appointment of Advisers under Article 130(11), the dictum that no executive authority could be exercised by these Advisers, remains unchanged and unfattered. Also of relevance is making reference to the findings given in the judgment reported in the case of Karachi Cooperative Housing Societies Union Ltd Vs. Government of Sindh and others (1990 MLD 389) where while making reference to Rules of Business, 1986 the Court making reliance on Halsbury’s Laws of England (Fourth Edition) Volume at para 32 expounded the maxim delegatus non potest delegare, and held that executive power conferred by statute upon a particular functionary cannot be delegated in the absence of express words or necessary implication, which are non-existent in the Constitution.
For the aforesaid reasons, the act of grant of portfolio vide Notification dated 30.07.2016 to the Respondent No.4 in terms of which he was given to exercise the executive authority which can only be exercised by the duly elected representatives, thus the said Notification being ultra vires of the Constitution has nullity in the eyes of law is hereby quashed, the portfolios, therefore, allocated to the Respondent No.4 in terms of the said Notification are of no legal effect.
With regards the Petitioner’s grievance on the appointment of the Respondent No.4 as the Chairman of the Board of Governors of Law Collages in Karachi, we wish to travel to the Sindh Government Educational and Training Institutions Ordinance, 1960 which gave birth to the Boards of Governors of educational and training institutions throughout Sindh.
Under section 8 of the said Ordinance, the Boards were created to perform the following functions:
(a) to acquire and dispose of property and generally to enter into contracts, in conformity with the purposes of this Ordinance;
(b) recruitment and determination of the terms and conditions of service of the principal and other members of the staff of the institution and of other officers and servants of the Board;
(c) to formulate the budget of the institution for approval of Government;
(d) to set up an Executive Committee and other Standing Committees as may be required for carrying out the purposes of this Ordinance;
(e) to delegate powers to the Chairman, the Executive Committee, Standing Committee, the Principal, the staff of the institution and other officers and servants of the Board; and
(f) to frame, subject to the approval of Government, regulations for the conduct of business of the Board.
Section 4 required Boards to be consist of such number of officials and non-official members (not exceeding 16) as may be appointed by the Government, and one of the members so appointed was named as the Chairman of the Board. According to Section 10, all moveable and immovable properties vested in Board’s name and Section 11 provided for the creation of a fund to receive local and foreign grants/loans and for the fees received by the Board. Under section 16, the Chairmen of the Board of Governors inter-alia was declared to be a public servant.
A notification was issued on 07.08.1978 in terms of which the provisions of the said Ordinance were extended to all of the law collages in the province of Sindh and separate Boards of Governors were created for the law collages in Karachi and those in the rest of the province. Through the said notification thus the Board of Governors for the Law Colleges in Karachi took inception. In the same notification, Chairman and members of the Board of Governors of law colleges in Karachi were notified to be comprising of the following persons:
1.
Chairman
Vice Chancellor, University of Karachi
2.
Member
A Judge of the High Court of Sindh as nominated by Chief Justice
3.
Member
Vice Chairman of the Provincial Bar Council
4.
Member
The Secretary or Additional Secretary, Education Department
5.
Member
A nominee of the Law Department
6.
Member
Advocate General
7.
Member
The President High Court Bar Association
8.
Member
Principal Sindh Muslim Government Law College, Karachi
9.
Member
Principal Islamic Government Law College, Karachi
Rules were also framed under section 17 of the said Ordinance, which were notified vide Notification dated 06.06.1983, where in terms of Rule 4(4), the meeting of the Board was to be presided over by the Chairman of the Board and the headquarter of the Board was seated in Karachi.
As it could be seen from the foregoing that the Board was not only put into place for the administration of law colleges but also it looks into the academic affairs, appointment of principals, course of studies, assets and funds of these colleges throughout the city of Karachi. Also to note is that the Board was chaired by the vice-chancellor of the University of Karachi and its members included Judges of this Court as well as other distinguished officials and non-official individuals with long established and proven excellence in the profession of law.
After the above referred Notification dated 07.08.1978, the Board of Governors for Law Colleges at Karachi was reconstituted by the Notification dated 07.05.2003 where certain structural changes were made. A review of the said Notification depicts that two groups comprising of Ex-Officio Members and Non Official Members were created. The first category was a new addition, and at the top of the said category “Members/Chairman” was added and Mr. Aftab Ahmed Shaikh, Advisor to Chief Minister for Finance & Cooperation was named as Chairman of the Board, while Vice Chancellor, Karachi University was listed at Serial No.2 and he was made an Ex-Officio Member, and similar was the case for the other members from Serial No.3 to 9 which were similar in designation and similar to the Notification dated 07.08.1978. A number of Non-Officio Members were also added in Notification dated 07.05.2003 and the said Notification mentioned that the Non-Official Members were appointed for a term of three years, whereas, no such term was prescribed for the Ex-Officio Members. The said Notification was superseded by a Notification dated 05.05.2006, where the structure remained consistent with the Notification dated 07.05.2003 and the Chairman of the Board was still Mr. Aftab Ahmed Shaikh, except his designation was changed to Senior Advocate, Karachi. Through a further Notification dated 23.07.2008, the members were divided into Official Members and Non-Official Members while the Vice Chancellor, Karachi University was heading the list of Official Members, a Chairman / Non-Official Member was introduced and Mr. Justice (Retd.) Zahid Qurban Alvi was notified to be Chairman of the Board. Also worth noted is that through the said Notification, tenure of Official Members as well as of the Non-Official Members was also fixed for a term of three years. Through another Notification dated 23.09.2011 the Board was reconstituted and Mr. Justice (Retd.) Zahid Qurban Alvi was nominated as Chairman/Non-Official Member. Through a further Notification dated 13.12.2011 Mr. Justice (Retd.) Qazi Khalid Ali was notified to be the Chairman of the Board which notification remained in field until 26.08.2015 when Mr. Farooq H. Naek, Senior Advocate Supreme Court of Pakistan was notified to be Chairman/Non-Official Member of the Board of Governors.
As it could be seen from the forgoing paragraph, the Board has been usually headed by either Vice Chancellor of the Karachi University or by eminent legal luminaries which included Mr. Aftab Ahmed Shaikh, a very Senior Advocate having long affiliation with Law College, Hyderabad, Mr. Justice (Retd.) Zahid Qurban Alvi, Mr. Justice (Retd.) Qazi Khalid Ali, both remained as Professors in Law College and Mr. Farooq H. Naek (Senior Advocate Supreme Court who remained Law Minister, Chairman Senate and Acting President of Pakistan) appointed vide notification dated 26.08.2015. Surprisingly through a notification dated 22.04.2016 Mr. Naek was abruptly removed from the Chairmanship of the Board and Mr. Zia-ul-Hsasan Lanjar (M.P.A.) replaced him (as an apparent makeshift arrangement) as just 5 days after the said notification, the Respondent No.4 (who hardly had six years of legal practice to his credit) was appointed as Chairman of the Board of Governors vide notification dated 27.04.2016.
The appointment of the Respondent No.4, as Chairman of the Board, once again seems to be violative of the principles of probity, prudence and good governance. As evident, the job at hand requires a person who is seasoned in the area of legal education and training with close relationship with the Bench and the Bar, as the pupils coming from the law schools find their nests at experienced lawyers’ chambers who have their eyes focused on the changing realities of legal practice and who are familiar with the requisite assistance needed by the Bench to adjudicate matters and to bring relief to the litigant.
As stated hereinbefore, it is very important to note that in cases where the law does not provide any criteria or qualification for the appointment to a position and leaves such appointment to the absolute discretion of the authority, in such cases the responsibility on the shoulders of authority is more taxing as the latter has to justify the said appointment on the touchstone of the prudence, good governance and fair play and such freedom cannot be misused to accommodate people of one’s choice. Courts have time and again demanded the executives to rise above the nexus of vested interests and nepotism and make appointment which can withstand the test of fairness, fitness, judiciousness and impartiality and avoid arbitrary and capricious actions. The appointment of the Respondent No.4 clearly seems to be devoid of the prudence needed to place someone at such a senior position, which ipso facto is also violative of the spirit and intent of the 1962 Ordinance that desires the incumbent to have a thorough knowledge of the legal profession and dynamics needed; from the selection and appointments of principals of law colleges, to the other sensitive matters as to the rules of seniority and imparting of law education as envisaged by the notification dated 07.08.1978. The said appointment of the Respondent No.4 as Chairman of the Board of Governors of Law Collages in Karachi for the above reasons is neither at par with previous similar appointments, nor aimed to further the objects of the applicable legislature, therefore declared meritless, void and illegal.
With regards the appointment of the Respondent No.4 to the post of Pro Vice Chancellor of Shaheed Zulfiqar Ali Bhutto University of Law, lets examine the applicable provisions of the Shaheed Zulfiqar Ali Bhutto University of Law Act, 2012 where Section 11 (1) of the said Act is relevant in terms of which, the Minister for Law and Parliamentary Affairs acts as the Pro Voice Chancellor of the University. As in the foregoing, we have concluded that the Respondent No.4, being an Adviser appointed under Article 130(11) of the Constitution, could not be given the executive authority to act as a Minister of Law ipso facto he also seize to be the Pro Voice Chancellor of the Shaheed Zulfiqar Ali Bhutto University of Law.
The petition accordingly is allowed.
CHIEF JUSTICE
JUDGE