SC cautions against use of judicial overreach

Says a judge must always stay within the four corners of the law


Hasnaat Malik March 31, 2021
PHOTO: AFP

ISLAMABAD:

The top court has observed that a judge must always stay “within the four corners of the law” and must not be swayed by emotions or his own understanding of justice because in doing so he fails to decide the case in accordance with law.

"Under our Constitution, the legislature, the executive, and the judiciary all have their own broad spheres of operation. It is not permissible for any one of these three organs to encroach upon the domain of another,” said a 5-page judgment, authored by Justice Syed Mansoor Ali Shah.

The judge was part of a three-judge bench, led by Justice Manzoor Ahmad Malik, which heard the appeal of the Multan Electric Power Company (Mepco) against a judgment of the Lahore High Court (LHC) in a hiring case.

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The SC verdict noted that when judiciary encroaches upon the domain of the executive, it is said to commit “judicial overreach”, which occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate.

"Through such interference, the court violates the doctrine of separation of powers by taking on the executive functions upon itself," it said.

The court said the instant case is a textbook case of judicial overreach, where a judge directed an authority [Mepco] to issue an appointment letter disregarding the recruitment process, merit and the employment policy of the executive authority.

"This judicial role imperils the separation of powers, jeopardizes the legitimacy of the judicial institution and undermines constitutional democracy," said the judgment. The court noted that it is imperative that the courts do not derogate from their constitutionally mandated oversight function of judicial review.

"Certain values in the Constitution have been designated as foundational to our democracy which means that, as corner-stones of our democracy, they must be scrupulously observed.

“It is a sure recipe for a constitutional crisis if these values are not observed and their precepts are not carried out conscientiously," it said.

The case

The respondent No 1, Muhammad Ilyas, applied for the post of Assistant Line Man (ALM) in pursuance to a public advertisement issued by Mepco. He sat the written test but was not called for the interview and as a result was not selected for the post.

Aggrieved, he challenged Mepco’s failure to select and appoint him to the post.

On merits, the post of the ALM was advertised and the last candidate who was selected for interview had a score of 66 marks in written examination, whereas respondent No 1 had scored 50 marks.

The LHC judge on November 14, 2018 directed Mepco assistant director to appear along with appointment letter duly signed and issued by the competent authority in favour of the petitioner before the court on the next date of hearing – November 15, 2018.

As Mepco failed to submit the appointment letter on the next date of hearing, the respondent No 1 filed a contempt petition against the petitioner company and its officers.

Later, the show cause notice for contempt was issued to Mepco chief executive officer and another officer of the petitioner company and they were also personally summoned.

Mepco challenged the orders through an intra-court appeal before an LHC division bench. The said appeal was dismissed on June 2, 2020. Later Mepco challenged the LHC orders in the Supreme Court.

The SC observed that the LHC totally ignored the recruitment process, the policy of the executive and the merit settled by Mepco and relied on an irrelevant fact that 1,000 seats were still lying vacant at Mepco. "This order (of the LHC dated November 14, 2018) has left us somewhat disturbed," it added.

Justice Shah noted that it appears that the meaning and scope of “judicial review” has perhaps eluded the attention of the judge while exercising his power under Article 199 of the Constitution and in passing the order dated November 14, 2018.

He said the judicial review is the power of the court to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the Constitution and the law.

“Actions judged inconsistent are declared unconstitutional or unlawful and, therefore, rendered null and void. The court entrusted with the power to judicially review an executive action can only declare it to be right or wrong but cannot take over the functions that belong to another organ of the state.”

The court said in the instant case, the judge instead of deciding the case on merits, passed the final order of appointment of the respondent No 1 without adjudicating the issue in hand and then executed the order by directing Mepco that the appointment letter be issued by the next date of hearing.

The apex court ordered that a copy of the order shall be dispatched to the LHC chief justice “who may place the same before the judges of the court for information”.

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