IHC verdict to affect eight serving judges

Seven retired SC judges were also allotted plots in FGEHA scheme

ISLAMABAD:

The Islamabad High Court’s order on Thursday that scrapped the government’s revised policy on the allotment of plots in the federal capital would affect eight serving judges, including CJP Justice Umar Ata Bandial.

They had applied for plots in sectors F14/F15 of Islamabad and were successful in acquiring them. Similarly, seven retired Supreme Court judges were also allotted plots.

However, it has been learnt that Justice Qazi Faez Isa, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar and Justice Yahya Afridi of the SC as well as any serving judge of the IHC had not applied for their plots.

The IHC has declared that superior courts judges were not entitled to receive a plot in a scheme launched by the Federal Government Employees Housing Authority (FGEHA) because no such privilege or entitlement had been included in the presidential orders.

Read more: IHC declares govt's plot allotment policy unconstitutional

“A person holding the office of a judge, whether in the Supreme Court, High Court or even District Courts, enjoys a very exalted status. The expectation of the people from them is much more than from any other office holder. They are not federal government employees, nor employees of autonomous bodies. They cannot put themselves in a position of adversarial nature against the citizens. They hold an exalted office to serve the people,” read a 64-page judgment authored by IHC Chief Justice Athar Minallah.

“The FGEHA and the federal government, by including the three categories as specified groups, have relegated them to the status of members for claiming benefits as per the decisions of the Executive Board. They have been treated as registered members of Membership Drive-II. The registered members of Membership Drive-I are at loggerheads and litigating for their rights and, resultantly, judges have also become a party to the litigation. The extraordinary treatment extended to the Supreme Court, Islamabad High Court and the District Courts of Islamabad as specified groups in itself raises questions,” says while scrapping the government revised policy regarding allotment of plots in capital.

The judgment also elaborated as to whether or not top courts judges were entitled to receive plots in a government scheme on lower prices.

The court in its ruling said that no civil servant, judge nor employees of other entities could claim, as of right, the allotment of State land at lower than the prevailing market price.

It added that the privileges and entitlements of judges of the Supreme Court and high courts were described in the relevant Presidential Order. “Like federal government servants or other employees, judges of the superior courts have no vested right to claim a plot in a scheme launched by the FGEHA because no such privilege or entitlement has been included in the presidential orders.”

Also read: "SC set to hear petition challenging IHC’s restraining order on plots’ allotment"

The court also said that like a civil servant or other federal government employee, a judge of the Supreme Court or high court had neither the right, nor the entitlement to a plot costing less than its market value.

“The FGEHA Act does not entitle a judge of the Supreme Court or a high court to become a beneficiary in a scheme unless the said constitutional bodies are declared and notified as one of the 'specified groups' by the Executive Board or the federal government.”

The IHC CJ noted that to maintain impartiality and independence, a judge must not only be able but also “be seen to be acting” without any restriction, influence, pressure, or interference, direct or indirect.

"Constitutional courts are guardians of the rights of the people. The confidence of the people in the independence and impartiality of the judges is of paramount importance. In the words of Lord Denning MR, ‘Justice is rooted in confidence, and confidence is destroyed when right-minded people go away thinking that the judge was biased’. Two most important principles are firmly embedded in our jurisprudence i.e. no one can be a judge in his own cause and that justice should not only be done but should manifestly and undoubtedly appear to have been done."

The IHC noted that these principles were the cornerstones of impartiality and independence of the courts. “It is even otherwise inappropriate for the executive organ of the State to lower the exalted status of the office of a judge by subjecting it to regulations of a housing scheme merely for its membership and the resultant benefits."

The judgment also said that a judge or a court could not become part of any scheme that had profound consequences for the exchequer and was contrary to public interest as it undermined the impartiality and independence of judges and the courts.

"We are, therefore, of the opinion that in the light of the above discussion, participation of a court or its judges in any scheme of the FGEHA or accepting its benefits is contrary to public interest and not in conformity with the impartiality and independence of the judiciary as an institution. The inclusion of the aforementioned courts and its judges by the FGEHA, and that too in the absence of a full court decision, was inappropriate and not in conformity with the constitutional status of these exalted courts. It was definitely not permissible under the Constitution for a judge or a court to be seen as usurping the fundamental rights of the people at large and become complacent to a policy formulated in breach of public interest.”