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Petitioner: Ch. Fayyaz Hussain VS Respondent: Province of Punjab etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Ch. Fayyaz Hussain vs Province of Punjab etc Case No.: Writ Petition No.29668 of 2021 Date of Judgment:2021-09-13 Reported As: 2021 LHC 5112, 2022 [M] CLR 1079, PLD 2022 Lahore 1 Result: Petition dismissed
JUDGMENT
JUDGMENT "How can our work better reflect several basic tenets of modern public life; first, the fact that, in our democracy, power flows from the people; second, the need to resist the technical, atomizing forces that divide us and to encourage those forces that unify and bring us together as community; and third, the effort to prevent our government from being perceived as a hostile alien entity, but rather to emphasize through participation that it can and should amount to no more than our nation's individual citizens themselves each showing a 'civic' face as each acts in his or her public capacity. Government officials and public architects alike are trying to rise to this challenge". (Justice Stephen G. Breyer, Judge US Supreme Court) JAWAD HASSAN, J. The Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") with the prayer to strike down the Punjab Emergency Service (Amendment) Act, 2021 (the "Act of 2021") and to declare it ultra vires to the constitutional provisions. I. CONTEXT 2. The whole case of the Petitioner is that the Respondents, through an amendment made under the Punjab Emergency Service Act, 2006 (the "Act"), are making the Punjab Emergency Service (the "Rescue 1122") as an independent administrative department without obtaining requisite consent from the Provincial Government. II. PETITIONER'S SUBMISSION 3. Learned counsel for the Petitioner Rana Fahad Zia, Advocate argues that under Column-IV of Second Schedule to the Punjab Government Rules of Business, 2011 (the "Rules") the Rescue 11221
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was established under the Act and controlled by the Home Department, Government of the Punjab however, making it an independent administrative department without obtaining consent from the Provincial Government is clear violation of Article 115 of the Constitution. He argues that enactment of Punjab Emergency Service (Amendment) Bill, 2021 (the "Bill") is unconstitutional and under judicial review, it is liable to be declared ultra vires in terms of judgment PLD 2012 SC 923. The counsel for the Petitioner has also relied on "LAHORE DEVELOPMENT AUTHORITY through D.-G. and others Versus Ms. IMRANA TIWANA and others" (2015 SCMR 1739). III. RESPONDENTS' SUBMISSION 4. On the other hand, Barrister Umair Khan Niazi, Additional Advocate General has vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the Petitioner has no locus-standi and cause of action to file this petition; that the Punjab Emergency Service Amendment Bill was passed by the Punjab Assembly after following procedure of law hence cannot be called into question in terms of Article 69(1) read with Article 127 of the Constitution. Barrister Syed Ali Noman Shah, Assistant Advocate General states that the Act was amended through the Act of 2021 by adopting proper procedure where the Rescue 1122 has been made as an independent department by Provincial Assembly. He relied on the judgment passed by this Court in "MUHAMMAD YOUSAF Versus THE SECRETARY FINANCE etc" (PLD 2021 Lahore 156). 5. Report and parawise comments have been submitted by the Respondents according to which the Petitioner has no locus standi to file this petition as neither he is an aggrieved person nor has any nexus with the service. It has further been stated that Article 139(3) of the Constitution empowers the Provincial Government to make rules for allocation and transaction of its business. 6. I have heard the arguments and perused the record. IV. MAINTAINABILITY OF THE PETITION 7. This petition was filed on 05.05.2021 and initially the Court, after hearing both sides, issued notices subject to maintainability of the petition. On the said date, the Court also framed following constitutional moot points: i) What is locus standi of the Petitioner to file this petition; ii) Whether the Government can make a separate administrative department under Article 139 of the Constitution read with the Rules; iii) Whether making of the Rescue 1122 as an independent administrative department covers under the meaning and definition of Department given in Rule 2(j) of the Rules; and iv) Whether the amendment made through the Act is in consonance with the principles settled by this Court in the judgment reported as "MUHAMMAD YOUSAF Versus SECRETARY FINANCE and others" (PLD 2021 Lahore 156). The Respondents brought their stance in response to aforesaid constitutional moot points and filed report and parawise comments. Today the case was argued on the maintainability of the petition but the Petitioner failed to convince the Court in order to admit or allow the writ petition. V. DETERMINATION BY THE COURT 8. Basically, the Petitioner has challenged the amendments made in Section 4(2) of the Act through the Act of 2021 by which the Rescue 1122 has been made as an independent and administrative department. The word "department" is defined under Rule 2(j) of the Rules which means a self-contained administrative unit in the Secretariat responsible for the conduct of business of the Government in a distinct and specified sphere, and declared or constituted. Since, the Rescue 1122 has been created by the Provincial Government through the Act of 2021 which will responsible for the emergency services, therefore, before proceedings further, it is imperative to discuss the purpose and object of the Act which provides for the establishment of the Punjab Emergency Service to deal with emergencies. The preamble to a statute is though not an
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operational part of the enactment but it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law. The August Supreme Court of Pakistan in "DIRECTOR GENERAL, FIA AND OTHERS Versus KAMRAN IQBAL and others" (2016 SCMR 447) laid down the similar principle by holding that:-"indeed, preamble to a Statute is not an operative part thereof, however, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well-established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same." 9. The Preamble of the Act provides for maintaining a state of preparedness to deal with emergencies, to provide timely response, rescue and emergency medical treatment to the persons affected by emergencies and recommending measures to be taken by related organizations to avoid emergencies. The general direction and administration of Rescue 1122 and its affairs vest with Director General appointed under Section 9 of the Act which exercises all powers, performs all functions and does all acts and things as specified by the Council established under Section 6 of the Act which perform its functions in terms of Section 7 of the Act. Under the Constitution, the Provincial Government functions under Articles 129 read with Article 137, and under Article 139 conduct of business is made alongwith the Rules. Article 139 of the Constitution deals with conduct of business of Provincial Government which reads as follows: 139 (1) All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor. (2) The [Provincial Government] shall by rules specify the manner in which orders and other instruments made and executed [in the name of Governor] shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the Governor. (3) The Provincial Government shall also make rules for the allocation and transaction of its business. 10. From bare reading of above, it is manifest that all executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor while Article 139(2) of the Constitution demonstrates that the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor. Likewise, Article 139(3) of the Constitution empowers the Provincial Government to make rules for the allocation and transaction of its business. Under the Rule 3(2) of the Rules, the Chief Minister is empowered to constitute new departments or the composition or number of the Departments and business of the Government shall be distributed amongst several departments in the manner indicated in the Second Schedule under Rule 3(3) of the Rules. 11. The counsel for the Petitioner has mainly put much emphasis on the point that by making the Rescue 1122 as an independent and administrative department, certain financial implications which require special budget and consent of the Provincial Assembly, have not been taken into consideration before making the amendment as such it is violation of Article 115 of the Constitution. The said Article is reproduced hereunder: 115 (1) A Money Bill, or a Bill or amendment which if enacted and brought into operation would involve expenditure from the Provincial Consolidated Fund or withdrawal from the Public Account
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of the Province shall not be introduced or moved in the Provincial Assembly except by or with the consent of the Provincial Government. (2) For the purposes of this Article, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely: (a) the imposition, abolition, remission, alteration or regulation of any tax; (b) the borrowing of money, or the giving of any guarantee, by the Provincial Government or the amendment of the law relating to the financial obligations of that Government; (c) the custody of the Provincial Consolidated Fund, the payment of moneys into, or issue of moneys from, that fund; (d) the imposition of a charge upon the Provincial Consolidated Fund, or the abolition or alteration of any such charge; (e) the receipt of moneys on account of the Public Account of the Province, the custody or issue of such moneys; and (f) any matter incidental to any of the matters specified in the preceding paragraphs. (3) A Bill shall not be deemed to be a Money Bill by reason only that it provides-- (a) for the imposition or alteration of any fine or other pecuniary penalty or for the demand or payment of a licence fee or a fee or charge for any service rendered; or (b) for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. (4) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the Provincial Assembly thereon shall be final. (5) Every Money Bill presented to the Governor for assent shall bear a certificate under the hand of the Speaker of the Provincial Assembly that it is a Money Bill and such certificate shall be conclusive for all purposes and shall not be called in question. 12. If the stance of the Petitioner is admitted as correct that making the Rescue 1122 as an independent and administrative department would create financial implications for which consent of the Provincial Assembly has not been taken before making the amendment in the Act, suffice it to say that the said stance of the Petitioner carries no weight because in the case in hand, a bill with respect to amendment in certain provisions of the Act was presented by the Respondent No.7 before the Provincial Assembly. The word "Bill" is defined under Rule 2(d) of the Rules which means a motion for making law. The Bill was passed by the Provincial Assembly on 03.03.2021 and assented to by the Governor of the Punjab on 16.03.2021 and it was published in the Gazette of Punjab on 17.03.2021 pursuant to which the Rules of Business were also amended in terms of Notification dated 23.06.2021. Hence, the stance of the Petitioner regarding financial implications and violation of Article 115 of the Constitution does not hold water. Moreover, the language of Article 115(4) of the Constitution is very clear and unambiguous about the question whether a bill is a money bill or not, the decision of the Speaker of the Provincial Assembly thereon shall be final. Therefore, the provision of Article 115 is not attracted to the case in hand. 13. Notably, Article 69 of the Constitution states that the validity of any proceedings in Majlis-e- Shoora (Parliament) shall not be called in question on the ground of any irregularity of any procedure. However, this provision applies to the Provincial Assembly in terms of Article 127 of the Constitution. The aforesaid Article specifically bars any person to approach the Courts of law for calling into question any of the proceedings regardless of the fact that it carries any irregularity in procedure. The Hon'ble Supreme Court of Pakistan in "Messrs SUI SOUTHERN GAS COMPANY LTD. and others Versus FEDERATION OF PAKISTAN and others" (2018 SCMR 802) while dealing with the issue in hand, referred the principles that there is presumption in favor of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two. It further said that where more than one interpretation
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is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity. It states further that a statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. It states further that mala fides will not be attributed to the legislature. For the sake of reference, the relevant part of the judgments is reproduced as under: 13. It is well established by this Court, while considering the vires of a legislative enactment under its powers of judicial review, can consider not only the substance of the law but also the competence of the legislature. Further, though it is an accepted principle that no mala fide can be attributed to the legislature, however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute. The vires of a statute can also be determined on the ground that the legislation is colourable. In the instant case the only issue involved is the legislative competence of the Parliament vis--vis the legislative authority of the Provincial legislature. In this regard it is to be noted that there is always a presumption in favour of the constitutionality of a legislative enactment unless ex facie it appears to be violative of any of the Constitutional provisions and in a case where two opinions with regard to the constitutionality of an enactment are possible, the one in favour of the validity of the enactment is to be adopted. Meaning thereby that when a law is enacted by the Parliament, the presumption lies that Parliament has competently enacted it (law), and if the vires of the same (law) are challenged, the burden always lies upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or the provisions of the Constitution. It is also a cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed. The Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary for injudicious exercise of this power might well result in grave and serious consequences. Reliance in this regard may be placed upon the cases of Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397), Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), Dr. Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Mian Asif Islam v. Mian Mohammad Asif (PLD 2001 SC 499), Pakistan Lawyers Forum and others v. Federation of Pakistan and others (PLD 2005 SC 719), Master Foam v. Government of Pakistan (PLD 2005 SC 373), Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq (PLD 2007 SC 133), Syed Aizad Hussain v. Motor Registration Authority (PLD 2010 SC 983), Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), In re: Regarding Pensionary Benefits of the Judges of Superior Courts (PLD 2013 SC 829) , M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. and others [(1992) 2 SCC 36], M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [(2006) 9 SCALE 652], Manish Maheshwari v. Asstt. Commissioner of Income Tax (AIR 2007 SC 1696), Bharat Petroleum Corpn. Ltd v. Maddula Ratnavalli and others [2007 (6) SCC 81] and also to the case reported as Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739). In the last mentioned case, this Court has held that "The power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. The Courts are one of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the Constitution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative." The Court
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after relying upon Cooley: "Treatise on Constitutional Limitations, Pages 159 to 186", H.M. Seervai: "Constitutional Law of India, Volume I, Pages 260 to 262", Mr. A.K. Brohi: "Fundamental Law of Pakistan, Pages 562 to 592", Mr. Justice Fazal Karim: "Judicial Review of Public Actions, Volume I, Pages 488 to 492", summarized the rules which must be applied in discharging the duty to declare laws unconstitutional, which read as under:- (a) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; (b) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; (c) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; (d) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; (e) The Court will not decide a larger constitutional question than is necessary for the determination of the case; (f) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; (g) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; (h) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; (i) Mala fides will not be attributed to the Legislature. 14. Moreover, making the Rescue 1122 as an independent and administrative department squarely falls within the legislative competence of provincial government therefore, it cannot be restricted or prohibited to legislate on any subject. Hence there is no restriction or prohibition in this respect. The learned Division Bench in "Dr. KHUSHNOOD ALI BAZ and 111 others Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others" (2018 YLR 512) while relying on judgments of Hon'ble Supreme Court of Pakistan held as under: "It is settled law that any law if validly enacted, cannot be struck down on the ground that it is against the whim of some individuals or a class of society. So long as the legislatures' acts within the parameters of the Constitution are concerned, there is no restriction or prohibition to legislate on any subject which falls in provincial legislative competence. In case titled, "Mehar Zulfiqar Ali Babu and others v. Government of the Punjab and others" (PLD 1997 Supreme Court 11) and case titled, "Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others" (2002 SCMR 312), the august Supreme Court while examining the question of vires of an enactment was pleased to rule that, "the function of judiciary is not to legislate or question the wisdom of legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision, provided the law is competently made. Vires of law can only be challenged being violative of any provision of the Constitution, but not on the ground that it nullifies the judgment of superior Court." Same view has been reiterated by the Hon'ble apex Court in case titled, "Haji Ghulam Rasul and others v. Government of the Punjab through Secretary, Auqaf Department Lahore and others" (2003 SCMR 1815). In the year 1974, a similar controversy was raised before the august Supreme Court in case titled, "Messrs Mamukanjan Cotton Factory v. The Punjab Province and others" (PLD 1975 SC 50), wherein the vires of an Ordinance and resultant action of the Provincial Government were challenged on the ground that it purports to enable the government to retain and claim (cotton fee), which according to the judgments of the High Court, the Government could not have at the material time, levied and collected. The
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argument before the august Court was that the collection of cotton fee had been declared illegal by the High Court under its jurisdiction conferred upon it by Constitution, whereas the validating Ordinance, whereby the collection of the cotton fee is validated against the judgments of the High Court, is sub-constitutional legislation, which cannot undo or destroy "end product" of the constitutional jurisdiction. The august apex Court while answering the above argument made a plain and comprehensible justification in the following words:- "The argument, in my opinion, is without substance and which I accepted would indeed lead to startling results. It would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end product" of constitutional jurisdiction in the cognate field. The argument if accepted, would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs; namely, the executive, the Legislature and the judiciary each being the master in its own assigned field under the Constitution." From the aforementioned principles laid down by the Hon'ble Supreme Court, it is abundantly manifest that the wisdom of the Parliament in legislation is outside the scope of Judicial Review. As long as the Legislature has the competence to legislate, the grounds or wisdom of legislation remains its exclusive prerogative. A strong presumption exist that a Legislature understands and correctly appreciates the needs of the public, that its laws are directed to the problems manifested by experience, and that its discrimination are based upon adequate grounds". 15. During the course of arguments, a specific question was put to the…
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