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Petitioner: Syed RIAZ ALI ZAIDI VS Respondent: GOVERNMENT OF THE PUNJAB through Chief Secretary, JUDGMENT
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title:Syed RIAZ ALI ZAIDI vs GOVERNMENT OF THE PUNJAB through Chief Secretary,
JUDGMENT
Reported As: PLD 2015 Lahore 463 Result: Petition allowed Judgment JUDGMENT "The judiciary should not be left in a position of seeking financial and administrative sanctions for either the provision of infrastructure, staff and facilities for the judges from the executive and the State, which happens to be one of the largest litigants autonomy is required for an independent and vibrant judiciary , to strengthen and improve the justice delivery system, for enforcing the rule of law ." ' SYED MANSOOR ALI SHAH, J.---This case explores the constitution alism of financial autonomy and budgetary independence of the superior judiciary on the touch stone of the ageless constitutional values of independence of judiciary and separation of powers. 2.Additional Registrar of this High Court has knocked at the constitutional jurisdiction of this Court, raising the question of noncompliance of the executive authority of the Federation by the Provincial Government, as the direction of the Prime Minister to the Provincial Government to enhance the allowances of the staff of the superior judiciary goes unheeded. During the course of hearing, this legal question has snowballed into a far more significant constitutional issue regarding the constitutional protection of the financial and budgetary autonomy of the High Court. 3.The facts are that the Prime Minister in the year 2011 allowed an increase in the pay of the staff of the superior judiciary across the country , by granting them an enhancement of 50% Judicial Allowance and 50% Adhoc Allowance ("Allowances") w,e,f, 1-7-2010. However , more importantly , the matter was also taken up by the Lahore High Court and was duly approved and sanctioned. The inaction and the silent refusal on the part of the Provincial Government to honour the budgetary
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{{FOOT NOTE}} Manmohan Sarin, J. In Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another [2000(88)DL T 710] {{FOOT NOTE}} approval of the Allowances by the High Court is not only violative of the constitutional financial procedures provided under Articles 121 and 122 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") but also corrodes the financial autonomy and as a result the independence of the judiciary which forms the bedrock of our constitutionalism. 4.Learned counsel for the petitioner goes on to submit that under Article 208 of the Constitution, read with Rule 17 of Chapter 10, Part "C" of the High Court Rules and Orders (Vol-V), it is the High Court that determines the remuneration of the staff of the High Court and the only constitutional role of the Provincial Government is to include this amount in the charged expenditure of the Annual Budget Statement and place the same before the Provincial Assembly , where it may be discussed but cannot be put to vote. 5.He also submitted that the officers and servants of the Judicial Branch of the State, in particular , the High Court belong to a separate judicial administrative cadre as envisaged under Article 208 of the Constitution, and are distinct from a civil servant and other employees of the other two branches of the State. This is also so because of the distinct job description, scope of work, working hours and professional responsibilities and cannot be considered at par with the civil servants working in the executive branch of the Province. 6.Learned Advocate General, Punjab submits that the Prime Minister's directive to grant Allowances to the staff of the Lahore High Court is not binding on the Provincial Government. He submitted that under Rule 17 of the High Court Rules and Orders any increase in admin istrative expenses including increase in remuneration to the officers and servants of the High Court is subject to the approval of the Governor . He referred to an earlier decision of the Governor , comm unicated to the Registrar of this Court vide letter dated 15-7-20 10 issued by- the Finance Depar tment, wherein 50% Adhoc Allowance 2010 was announced by the Governor , but was not extended to certain departments and institutions including the judiciary who had already been allowed a similar allowance. He went on to submit that matters pertaining to allocation of finance are policy matters and fall within the domain of the executive, therefore, increase in the administrative expenses of the High Court including remuneration of the officers and servants of the High Court is subject to the approval of the Governor . He, without any supporting evidence, submits that special judicial allowance has already been given to the staff of the Lahore High Court in the past and, therefor e, the salaries of the staff of the Lahore High Court are far better than the salaries drawn by staf f of the other High Courts. 7.He submitted that, during the course of hearing of this case, Provincial Government has voluntarily agreed to grant 50% Judicial Allow ance to the staff of Lahore High Court w,e,f, 1-7-2014 vide Notification dated 4-9-2014 and adds that the Governor has extended this relief under Article 208 of the Constitution. 8.Mr. Waqqas Ahmad Mir, Advocate/learned amicus curiae, submitted that the directions issued in letters dated 26-1-201 1 and 1-2-201 1 by the Ministry of Law, Justice and Parliamentary Affairs Division, Government of Pakistan are in exercise of the executive authority of the Federation and cannot be turned down by the Provincial Government. He submits that the requisition put up by the Lahore High Court for enhancement of 50% Judicial Allowance and 50% Adhoc Allowance vide letter
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dated 20-5-2013 to the Provincial Government has received no response and Government is sitting on it since then. He submits that under Article 208 of the Constitution, the High Court Rules have to be approved once by the Governor and thereafter the exercise of power under the said rules by the Chief Justice of this Court is not subject to repeated approvals of the Governor . Any such interpretation would mar the administrative independence vested in the judiciary under Article 208 of the Constitution. Opinion of the Court Facts: 9.The Finance Minister , Governmen t of Pakistan made the following recommendation on 19-12- 2010:- "The superior judiciary and its staff may be provided a general increase in Pay and Judicial Allowance at the uniform rate of 50% as made applicable to government servants in the Budget." ' Thereafter , the Ministry of Law, Justice and Parliamentary Affairs, Gove rnment of Pakistan put up a summary before the Prime Minister on 20-12-2010 titled "Increase in the pay and judicial allowance of the Judges and staff of the superior judiciary ." The relevant extracts of the summary are as follows:-- "While reviewing the impact of the salary increase in the budget and to firm up the forecasts of pay and allowances for the full financial year (2010-1 1), it was noticed that the salary increases had not been applied to the Superior Judiciary . 2. An ado relief @ 50% and 100% of basic pay was given to all civil servants and the members of Armed Forces respectively by the government w,e,f, Ist July, 2010. However , no relief has been allowed to the Judges and staff of the superior judiciary so far due to the reasons that they do not fall under the definition of civil servants. 3. Ministry of Finance has agreed that the superior judiciary and its staff may be provided a general increase in pay and Judicial Allowance at the uniform rate of 50% as made applicable to government servants in the budget 2010-1 1 (Annex-I). 4 5 6 7. The Prime Minister is requested to approve 50% increase at the uniform rate of the basic pay and Judicial Allowance to the staf f of the Superior Judiciary w ,e,f, Ist July , 2010. 9. This summary has the approval of the Minister for Law , Justice and Parliamentary Affairs. ' The same was approved and letter dated 26-1-201 1 was issued to all the respective Registrars of the superior judiciary by the Law, Justice and Parliamentary Affairs Division, Government of Pakistan. The letter stated: "I am directed to say that the Prime Minster has been pleased to approve 50% increase at the uniform rate of the basic pay and Judicial Allowance to the staff of the Superior Judiciary with effect from 1st July , 2010." ' A similar letter dated 1-2-201 1 was issued to all the Secretaries of the Finance Departments of the respective Provincial Governments. 10. Initially , Lahore High Court wrote to the Accountant General, Punjab for implementing the decision of the Prime Minister vide letters dated 2-2-201 1 and 3-2-1201 1. Thereafter , the matter was put up before the Administration Committee of this Court, to exam ine the merits of the said Allowances, in its meeting held on 18-2-2012. The Administration Committee of this Court proposed
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that a Sub-Committee may examine the matter . The Sub-Committee deliberated upon the issue and recommended that the Allowances be paid to the staff of the High Court w,e,f, 1-7-2010 in its meeting held on 2-2-2013. Thereafter , the matter was put up before the Administration Committee, which approved the recommendations of the Sub-Committee on 15-5-2013. The Registrar of this Court on 20-5-2013 placed the decision of the High Court before the Governor . Since then there has been no response in this regard. 11.It is an admitted fact that after the grant of Allowances to the staff of the superior judiciary , they are since being paid to the staff of the superior judiciary , across the country , including the august Supreme Court of Pakistan, Federal Shariat Court, as well as, all the other High Courts of Pakistan except the Lahore High Court. In some cases the Provincial Government simply implemented the decision of the Prime Minister , and in other , independent and separate decision of the respective judiciaries was implemented. 12.The question before this Court is whether administrative expenses of the High Court, which under the Constitution is an expenditure charged on the Provincial Consolida ted Fund under Articles 121 and 122 of the Constitution, once approved and claimed by the High Court, can be ignored or turned down by the Provincial Government or the Provincial Legislature? 13. Judicial independence is composed of at least five aspects: (1) Non-political appointments to a court, (2) guaranteed tenure and salary; (3) executive and legislative interference with court proceedings or, office holders; (4) budgetary autonomy; (5) administrative autonomy . Constitutionalism of financial autonomy of the judiciary; finds its roots in the preambular constitutional values which state that "the principles of democracy ...Shall be fully observed" and that A "independence of judiciary shall be fully secured." These values are echoed more substantively in the Objectives Resolution when read with Article 2A of the Constitution. Article 175 reaffirms independence of judiciary on the basis of separation of powers. Article 208 provides administrative independence and insularity to the judicial branch by empowering the judiciary to appoint its officers and servants on their own terms and conditions of employment. This constitutes separate cadre of judicial administrative staff, distinct from the staff and officers of the Executive or the Legislative Branches of the State. This thoug ht has been echoed earlier in Registrar , Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad (1997 PLC (C.S.) 137), Government of the Punjab through Secretary , Finance Department, Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 SC 375), Muhammad Yaqub Butt, Additional Registrar , Lahore High Court v. Government of the Punjab through Chief Secretary and another (PLD 1992 Lahore 527) and Messrs Nusrat Elahi and 41 others v . The Registrar , Lahore High Court, Lahore and 68 others ( 1991 MLD 2546 ). {{FOOT NOTE}} 2 The Culture of Judicial Independen ce-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P .480 (foot note #10). {{FOOT NOTE}} 14. Protection of financial independence of the judiciary is carved out by Articles 121 and 122 of the Constitution. Article 121 provides that the administrative expenses of the High Court shall be a charged expenditure on the Provincial Consolidated Fund, which may be discussed but shall not be submitted to vote of the Provincial Assembly . The High Court in determining its administrative expenses, including remuneration payable to its officers and servants, enjoys constitutional autonomy , which cannot be interfered with by the executive or the legislative branches of the State.
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The administrative expenses of the High Court form part of the Charged Expenditure, which for the purposes of the Province finds its explanation under Articles 121 and 122 of the Constitution. Provincial Charged Expenditure is an expenditure met from the Provincial Consolidated Fund, which may be discussed but not submitted to the vote of the Provincial Assembly .3 15.Our jurisprudential journey from Sharaf Faridi' down to Sh. Riaz ul Haq 5 including Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Al-Jehad Trust through Raeesul Mujahideen Habib-ul-W ahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324), Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others (PLD 2011 Kar. 451) and Accountant- General, Sindh and others v. Ahme d All U. Qureshi and others (PLD 2008 SC 522), repeatedly underscores the integrality of judicial independence to rule of law and democracy . In Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341), Saleem Akhtar , J. Speaking for the Court held:-- "This observation in effect finds support from Articles 81, 82, 121 and 122. The first two Articles relate to remuneration payable to the Judges of the Supreme Court and the administrative expenses including the remuneration payable to officers or servants of the Suprem e Court. The expenditures are charged on the Federal Consol idated Fund which under Article 82 "may be discussed in, but shall not be submitted to the vote of, the National Assembly". The same provisions have been {{FOOT NOTE}} 3 Articles 121 and 122 of the Cons titution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P .2.20. Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Karach 404) and also Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v . Sharaf Faridi and others PLD 1994 SC 105 . Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 . {{FOOT NOTE}} made in respect of High Court Judges and administrative expenses of the High Court. The financial requirements of the Supreme Court and the High Courts should be assessed by the Courts and after meaningful consultation with such Courts annual funds as per requirement be allocated and placed at the disposal of the Courts. All remunerations, expenses and disbursements relating to the judiciary should be made without any interference by any department which are usually technical in nature requiring compliance with certain rules and practice of other departments of the Government. In case of any objection, if approval of the Chief Justice concerned is given, it should stand waived and set aside. " (emphasis supplied) ' In Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others ( PLD 1994 SC 105 ), Nasim Hasan Shah, J. W rote:-- "In our opinion, financial independence of the judiciary can be secured if the funds allocated to the Supreme Court and High Courts (by the Parliament and the Provincial Assemblies in their respective annual budgets) are allowed to be disbursed within the limits of the sanctioned budget by the respective Chief Justices of these Courts without any interference by the Executive (in practical terms without reference and seeking the approval of the Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice would be competent to make re-appropriation of the amounts
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from one head to another , create new posts, abolish old posts or change their nomenclature and to upgrade or downgrade etc. As per requirements of their respective Courts and this should be possible, as has been observed earlier , without being obliged to seek the approval of the Ministry of Finance or the Provincial Finance Departments as the case may be, provided of course the expenditure that is incurred by them falls within the limits of the budget allocation for their Courts. To ensure financial discipline, an Accounts Officer of the Accountant-General may sit in all Courts for pre-audit and issue of cheques. In this way, the control of the executive over the judiciary in this important sphere will be eliminated and the judiciary enabled to function independently ." ' In Abdul Rasheed and others v. Province of Sindh and others (2011 PLC (C.S.) 926), Shahid Anwar Bajwa, J. Speaking for the court held:-- "16. Therefore, in our view once approval has been granted by the Administrative Committee of the High Court the Provincial Executive could at best approach the High Court and point out the financial constraint and thereafter leave the matter for the High Court to decide. However , once High Court had decided Finance Department has no option , if amount provided in the budgetary provision is not adequate to meet such requirement to convey such budgetary positio n to the High Court and to ensure that in the next budget proposals are made to the Provincial Assembly and appropriate provision is made in this regard. If Provincial Assembly does not approve such budget any provision it would of course be another matter . We have not reached that bridge and therefore we leave this aspect of question for consideration in an appropriate case." (emphasis supplied) ' The constitutional significance of financial autonomy , especially in the context of administrative expenses of the superior judiciary , has not been fully actualized. Theref ore, the concept of financial autonomy of the judiciary needs further unpacking. 16. "For courts to resolve disputes without bias there needs to be judicial independence: the judiciary must be both independent and impartial. Both conditions are necessary in order to avoid the opposing risks of infirmity and tyranny . The risk of infirmity exists when the judiciary is dependent on other branches of government or on public opinion. The risk of tyranny is associated with a biased judiciary and a lack of judicial accountability ."6 Professor Barak has argued that "substantive aspect of democracy" is characterized by values such as 'separation of powers, the rule of law, judicial independence, human rights,..." Separation of powers and judicial independence, being two sides of the same coin, are foundational to the constitutional construct of democr acy. "Judicial Independence is a central component of any democracy7" and is composed of two foundations and only the combination of the two guarantees the independence of the judiciary . "These two foundations are the independence of the individual judge and the independence of the judicial branch...Institutional independence is designed to build a protective wall around the judicial branch that prevents the legislative and executive branches from influencing the way judges realize their roles as protectors of the Constitution and its values. The judicial branch must therefore be run, on the organizational level in an independent manner . It should not be part of the executive branch and {{FOOT NOTE}} The Mt. Scopus International Standards of Judicial independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P .475. 7 Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (See P .76 Aharon Barak - The Judge in a Democracy).
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{{FOOT NOTE}} should not be subject to the administrative decisions of the executive branch. 8" 17. While judicial independence means that a judge must decide individual cases free from any extraneous influence, it also requires that the judicial branch exercises control and influence over the administrative penumbra immediately surrounding the judicial process. Pivotal to the independence of the judicial branch is its financial autonomy , not in the sense of constitutionally protected salary structure but also the financial autonomy to budget for the administrative costs for effectively running and managing the judicial branch. The high watermark of this principle is elaborated by Sir Francis Purchas in his Article 'What is happening to Judicial Independence': "Constitutional independence will not be achieved if the funding of the administration of justice remains subject to the influences of the political market place. Subject to the ultimate supervision of Parliam ent, the Judiciary should be allowed to advise what is and what is not necessary expense to ensure that adequate justice is available to the citizen and to protect him from unwarranted intrusion into his liberty by the executive.'" 18." Culture of judicial independence must ensure institutional and administrative functioning of the judiciary as an institution, as well as, the substantive and administrative functioning of the individual judge. Independence of judiciary , in effect means self-judicial governance, which in turn means control of the judiciary over the judicial system. This control includes budgeting, financial managing, managing human resources and managing of a large system. It also includes the professional management, such as managing case assignment, engaging in rulemaking of the procedures of the courts and enforcing these procedural rules. Likewise, judicial self- governance includes the development and the enforcement -of judicial ethics and a code of conduct. In order for the Judiciary to engage in self-governance, it should have a wide diversity of abilities. Administrative abilities are required for managing the system of justice. Self-governance also requires the judiciary to act in coordination with the other branches of government. In addition to these abilities, self-judicial governance requires a Judiciary which has financial qualifications. Another area of responsibility in the administration of courts is the security and safety ."11 {{FOOT NOTE}} 8 Aharon Barak - The Judge in a Democracy) PP . 77 and 80. 9 New Law Journal 30-9-1994 at 1306 and 1308. 10 Also see: The Business of Judging - Tom Bingham, P .57. The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet and Christopher Forsyth, PP .20-21. {{FOOT NOTE}} 19. Our Constitution promotes and encourages the culture of judicial independence. Articles 121, 122, 175 and 208 of the Constitution provide the construct for self-judicia l governance which rests on foundational pillars like; separation of powers, administrative independe nce and financial autonomy . Article 208 of the Constitution provides that the "High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of the officers and servants of the Court and for their terms and conditions of employment." The Rules that regulate the appointments and conditions of service of the establishment' have been provided under Chapter-10, Part "C" of the High Court Rules and Orders (Volume-V). Rule 17 of these Rules provides that members of the High Court Establishment i,e,, its officers and servants, shall be entitled to pay
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(including special pay) and allowances as fixed by the Chief Justice, from time to time, provided the Rules are approved by the Governor as mandated by the Constitution under Article 208. The only constitutional requirement is that the Governor must approve the said rules, which is a one-of f act. In line with this constitutional dictate, Rule 17 of the High Court Rules and Orders also requires that the Rules must be approved by the Governor in the following manner:-- Conditions of Service ' Rule 17. Members of the High Court Establishment shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from time to time with the approval of the Governor to these rules. The said Rule does not mean that the decision of the Hon'ble Chief Justice…
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