‘Judicial review’ should remain within constitutional purview

Justice Sayyed Mazahar Ali Akbar Naqvi authored nine-page judgment

ISLAMABAD:

The Supreme Court has held that the superior courts, while exercising the power of judicial review, “must not violate the right of any other organ of the state” and “remain within the prescribed limits” as disclosed in the Constitution.

In addition, the court also held that the “principle of equality does not mean that every law, policy matter, notification, administrative or executive order, etc., must have universal application to all the persons who, by nature, attainment or circumstances, are not in the same position”.

A three-judge bench of the apex court led by Chief Justice of Pakistan Gulzar Ahmed issued the judgment while setting aside the Peshawar High Court judgment granting 5 per cent ad hoc relief allowance to its 17 to 19 grade employees.

“The facts of the matter are that for the fiscal year 2019-20, the federal government in the annual budget had granted 10 per cent ad hoc relief allowance to the employees of federal government from BPS-1 to BPS-16, while 5 per cent ad hoc relief allowance was granted to the employees of BPS-17 to BPS-20.”

The allowances were given on running basic pay. The government of Khyber-Pakhtunkhwa, while drawing analogy from the said grant, announced an increase in salaries vide notification dated July 11, 2019, however, it made a distinction that 5 per cent ad hoc relief allowance will be provided to employees of BPS-17 to BPS-19 but the same was not made available to those employees of the provincial government who were already drawing special allowances, including Special Judicial Allowance, subject matter of issue in dispute.

As the respondents, being employees of BPS-17 to BPS-19 of the Peshawar High Court, were already drawing Special Judicial Allowance, therefore, they were denied the said 5 per cent ad hoc relief allowance.

Being aggrieved by the notification, they challenged the impugned notification before the Peshawar High Court by filing a petition on the ground that the notification in question “is discriminatory in nature and is issued in defiance of Article 25 of the Constitution”.

Justice Sayyed Mazahar Ali Akbar Naqvi, while authoring the nine-page judgment, adjudicated three questions: i) whether the classification in question was based on intelligible differentia and contrary to Article 25 of the Constitution; ii) Whether the executive authority can classify and sub-classify the employees only to the extent to grant certain extra benefits; iii) whether the high court while exercising the power of judicial review has the authority to interfere in policy matters of government.

Justice Naqvi, in his ruling, posed a question that whether the high court under the garb of judicial review has the power to interfere in the policy matters of the government.

"The process of judicial scrutiny of the legislative acts on the touchstone of the Constitution is called judicial review. The doctrine of judicial review is the enforcement of the rights assured and guaranteed under the Constitution through Constitutional remedies."

The court said that it is one of the great assets of federalism, and is the protector of the fundamental rights. "The fundamental object of judicial review is to exert a great moral force upon the legislature to keep it within the limits of the constitution and the law and to save the people from the unreasonable executive actions."

The order said that the Supreme Court in a number of cases has held that the constitutional courts, being guardian of the Constitution, have the power to judicially review the executive actions and the conduct of the public authorities but the same should be on the touchstone of fairness, reasonableness and proportionality.

"It is a matter of fact that our Constitution is based upon the principle of trichotomy of powers. However, the power of judicial review is an added attribute of the judiciary. The courts, while exercising the power of judicial review, must not violate the right of any other organ of the state and remain within the prescribed limits as disclosed in the Constitution of Islamic Republic of Pakistan, 1973.

“Though the Constitution is based upon the federal system of government, the provinces are autonomous in many respects after the 18th Amendment [and] the horizon of autonomy of the provinces has been widened especially with reference to financial matters by way of abolishing the concurrent list to some extent."

The court also said that as each province has its limited quota under the National Finance Commission Award and the provinces are supposed to run its affairs within the prescribed financial limits, hence, the impugned notification can be safely termed as subject of the policy to compensate the employees getting disproportionate salary as compared to the respondents.

“In view of the facts and circumstances, we are of the considered view that the learned high court has passed the judgment in disregard of the powers and the law, hence, the impugned notification is declared to be legal and rightly issued in accordance with law," says the order.

The court said that Article 25 guarantees to every person the right to equality before the law and the equal protection of the laws. The expression “equal before law” is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language, etc., implying thereby the absence of any privilege in favour of any individual.

"The guiding principle of this article is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike.

“Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, this Article does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should be treated differently."

The court also said that as a matter of fact all persons are not alike or equal in all respects. "Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality.

“To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress.

"It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority. It is now well established law that persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference.

Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction.

"The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation.

"The principle of equality does not mean that every law, policy matter, notification, administrative or executive order, etc., must have universal application to all the persons who by nature, attainment or circumstances are not in the same position. The varying needs of different classes of persons require different treatment.

"In order to pass the test for permissible classification two conditions must be fulfilled i.e., i) the classification must be founded on an intelligible differentia which distinguishes persons or things those are grouped together from others left out of the group, (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved. However it must disclose that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object of action under consideration based upon justiciable reasonings.

Through the impugned notification, the relief of 5% was denied to those employees of BPS-17 to BPS-19, who are already drawing special allowances in the name of Health Professional Allowance, Special Judicial Allowance, Scheduled Post Allowance, Technical Allowance, Prisons Allowance and Prosecution Allowance."

"The reason of this classification as furnished by the appellant was due to financial impediment as the employees from BPS-17 and above being officers are in receipt of more salary than those of the employees from BPS 1 to BPS 16, which in common parlance is called disproportionality in the salary of the employees.

“As narrated above, in order to pass the test for permissible classification two conditions must be fulfilled i.e. (i) the classification must be founded on an intelligible differentia, and (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved."

"Articles 29 to 40 in Chapter 2 of the Constitution of Islamic Republic of Pakistan are the “Principles of Policy”. These principles of policy are the directive principles to achieve the cherished goal of a welfare state. Article 38(e) makes it mandatory for the Government that it shall “reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan.”

In a way, it is the duty of the government to remove the disproportionality in the salaries of various classes of employees who are in service of Pakistan.

"The impugned notification was impliedly in consonance with the spirit of the Constitution, therefore, the learned high court ought to have refrained from interfering in it."

The Supreme Court has held that the superior courts, while exercising the power of judicial review, “must not violate the right of any other organ of the state” and “remain within the prescribed limits” as disclosed in the Constitution.

In addition, the court also held that the “principle of equality does not mean that every law, policy matter, notification, administrative or executive order, etc., must have universal application to all the persons who, by nature, attainment or circumstances, are not in the same position”.

A three-judge bench of the apex court led by Chief Justice of Pakistan Gulzar Ahmed issued the judgment while setting aside the Peshawar High Court judgment granting 5 per cent ad hoc relief allowance to its 17 to 19 grade employees.

“The facts of the matter are that for the fiscal year 2019-20, the federal government in the annual budget had granted 10 per cent ad hoc relief allowance to the employees of federal government from BPS-1 to BPS-16, while 5 per cent ad hoc relief allowance was granted to the employees of BPS-17 to BPS-20.”

The allowances were given on running basic pay. The government of Khyber-Pakhtunkhwa, while drawing analogy from the said grant, announced an increase in salaries vide notification dated July 11, 2019, however, it made a distinction that 5 per cent ad hoc relief allowance will be provided to employees of BPS-17 to BPS-19 but the same was not made available to those employees of the provincial government who were already drawing special allowances, including Special Judicial Allowance, subject matter of issue in dispute.

As the respondents, being employees of BPS-17 to BPS-19 of the Peshawar High Court, were already drawing Special Judicial Allowance, therefore, they were denied the said 5 per cent ad hoc relief allowance.

Being aggrieved by the notification, they challenged the impugned notification before the Peshawar High Court by filing a petition on the ground that the notification in question “is discriminatory in nature and is issued in defiance of Article 25 of the Constitution”.

Justice Sayyed Mazahar Ali Akbar Naqvi, while authoring the nine-page judgment, adjudicated three questions: i) whether the classification in question was based on intelligible differentia and contrary to Article 25 of the Constitution; ii) Whether the executive authority can classify and sub-classify the employees only to the extent to grant certain extra benefits; iii) whether the high court while exercising the power of judicial review has the authority to interfere in policy matters of government.

Justice Naqvi, in his ruling, posed a question that whether the high court under the garb of judicial review has the power to interfere in the policy matters of the government.

"The process of judicial scrutiny of the legislative acts on the touchstone of the Constitution is called judicial review. The doctrine of judicial review is the enforcement of the rights assured and guaranteed under the Constitution through Constitutional remedies."

The court said that it is one of the great assets of federalism, and is the protector of the fundamental rights. "The fundamental object of judicial review is to exert a great moral force upon the legislature to keep it within the limits of the constitution and the law and to save the people from the unreasonable executive actions."

The order said that the Supreme Court in a number of cases has held that the constitutional courts, being guardian of the Constitution, have the power to judicially review the executive actions and the conduct of the public authorities but the same should be on the touchstone of fairness, reasonableness and proportionality.

"It is a matter of fact that our Constitution is based upon the principle of trichotomy of powers. However, the power of judicial review is an added attribute of the judiciary. The courts, while exercising the power of judicial review, must not violate the right of any other organ of the state and remain within the prescribed limits as disclosed in the Constitution of Islamic Republic of Pakistan, 1973.

“Though the Constitution is based upon the federal system of government, the provinces are autonomous in many respects after the 18th Amendment [and] the horizon of autonomy of the provinces has been widened especially with reference to financial matters by way of abolishing the concurrent list to some extent."

The court also said that as each province has its limited quota under the National Finance Commission Award and the provinces are supposed to run its affairs within the prescribed financial limits, hence, the impugned notification can be safely termed as subject of the policy to compensate the employees getting disproportionate salary as compared to the respondents.

“In view of the facts and circumstances, we are of the considered view that the learned high court has passed the judgment in disregard of the powers and the law, hence, the impugned notification is declared to be legal and rightly issued in accordance with law," says the order.

The court said that Article 25 guarantees to every person the right to equality before the law and the equal protection of the laws. The expression “equal before law” is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language, etc., implying thereby the absence of any privilege in favour of any individual.

"The guiding principle of this article is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike.

“Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, this Article does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should be treated differently."

The court also said that as a matter of fact all persons are not alike or equal in all respects. "Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality.

“To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress.

"It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority. It is now well established law that persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference.

Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction.

"The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation.

"The principle of equality does not mean that every law, policy matter, notification, administrative or executive order, etc., must have universal application to all the persons who by nature, attainment or circumstances are not in the same position. The varying needs of different classes of persons require different treatment.

"In order to pass the test for permissible classification two conditions must be fulfilled i.e., i) the classification must be founded on an intelligible differentia which distinguishes persons or things those are grouped together from others left out of the group, (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved. However it must disclose that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object of action under consideration based upon justiciable reasonings.

Through the impugned notification, the relief of 5% was denied to those employees of BPS-17 to BPS-19, who are already drawing special allowances in the name of Health Professional Allowance, Special Judicial Allowance, Scheduled Post Allowance, Technical Allowance, Prisons Allowance and Prosecution Allowance."

"The reason of this classification as furnished by the appellant was due to financial impediment as the employees from BPS-17 and above being officers are in receipt of more salary than those of the employees from BPS 1 to BPS 16, which in common parlance is called disproportionality in the salary of the employees.

“As narrated above, in order to pass the test for permissible classification two conditions must be fulfilled i.e. (i) the classification must be founded on an intelligible differentia, and (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved."

"Articles 29 to 40 in Chapter 2 of the Constitution of Islamic Republic of Pakistan are the “Principles of Policy”. These principles of policy are the directive principles to achieve the cherished goal of a welfare state. Article 38(e) makes it mandatory for the Government that it shall “reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan.”

In a way, it is the duty of the government to remove the disproportionality in the salaries of various classes of employees who are in service of Pakistan.

"The impugned notification was impliedly in consonance with the spirit of the Constitution, therefore, the learned high court ought to have refrained from interfering in it."