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Petitioner: Vice Chairman Punjab Bar Council & others VS Respondent: Govt. of the Punjab & others
Court Name: Lahore High Court Judge(s): Shahid Karim Title: Vice Chairman Punjab Bar Council & others vs Govt. of the Punjab & others Case No.: W.P No.19469 of 2021 Date of Judgment:2021-05-03 Reported As: 2021 [M] C L R 768, PLD 2021 Lahore 544, PLJ 2021 Lahore 727, 2021 LHC 1427 Result: Petition allowed
JUDGMENT
JUDGMENT Shahid Karim, J. This judgment shall also decide constitutional petitions W.P No. 19343 of 2021, W.P No.21325 of 2021 and W.P No.13908 of 2021. All of these petitions present for review the provisions of the Code of Civil Procedure (Punjab Amendment) Ordinance, 2021 ("Amendment Ordinance") . It was promulgated and published in the Punjab Gazette on 10.02.2021. The petitioners contend that the Amendment Ordinance is ultra vires the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") as it offends the provisions of the Constitution and thus the promulgation is caught by the vice of unconstitutionality . 2. The case of the petitioners can be captured in the following contentions: "1. The Code of Civil Procedure (Punjab Amendments) Ordinance 2021 (The "Amendment Ordinance") is ultra vires Articles 202 and 203 of the Constitution and is violative of the basic structure of the Constitution which includes independence of judiciary and the fundamental rights of the litigants and citizens of the Province of Punjab, inter alia effectively destroying recent amendments and reforms introduced to the Code. a. Article 202 of the 1973 Constitution was newly added and approval of Governor was removed as had been in the from the equivalent article in 1962 constitution to ensure independence of judiciary . The passage of the Ordinance in effect renders the change to naught. b. The Amending Ordinance is ultra vires Articles 202 and 203 particularly as the same was issued without consultation with the Lahore High Court or even with its knowledge. c. The Amending Ordinance violates the independence of judiciary as it renders at naught all the procedural changes previously made in the Orders of the CPC (Schedule-I). 2. The issuance of any Ordinance under Article 128 of the Constitution requires satisfaction of the Governor before said issuance and no evidence of any material being available is available on record of the basis of formation by the Governor or Cabinet.
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3. That given that the present Amending Ordinance overrides the 2020 CPC Amendment Ordinance, there is no material on record indicating reasons for a change of satisfaction as well. 5. That various individual provisions too are ultra vires the previous well-considered Amendments made in 2018 by the Lahore High Court (p.16 of WP) and in effect renders them at naught, that too without prior consultation with the High Court. 6. That the Ordinance entirely disturb the entire scheme of the CPC. Entire process put in s. 25 and 26 and in effect renders the entire Schedule I of the CPC to naught, which once again in ultra vires the independence of judiciary and Articles 202 and 203 of the Constitution. 7. That the Code is a special type of law which requires active consultation between the Legislature and the Judiciary as Schedule 1 is managed by the Judiciary and the sections by the Legisl ature. One cannot be allowed to contradict the other and in so far as the Amending Ordinance is without active participation and consultation of the Lahore High Court, the same is liable to be set aside as such. ? 3. The learned counsels appearing in W.P No.19343 of 2021 and connected petitions made initial arguments based on the rule that there was no debate on the various provisions of the Amendment Ordinance as also reiterated the arguments of Mr. Muhammad Ahmad Qayyum, Advocate regarding the entirety of the Amendment Ordinance being ultra vires Article 202 read with Article 175 of the Constitution. These arguments of the learned counsels in this Court shall be dealt with during the course of this opinion. 4. The learned A.A.G filed written statement on behalf of Province of the Punjab ("Punjab") and retorted that the Amendment Ordinance is constitutional. It was based on the advice of the Chief Minister to the Governor and the opinion to be formed by the Governor under Article 128 of the Constitution is subjective and is not liable to interference by this Court by superimposing its opinion for that of the Governor . The Advocate General Punjab chose not to appear pursuant to notice under Order XXVII, A, CPC and did not file any written statement. Opinion of the Court: 5. As adumbrated, the primary argument of the petitioners was that the satisfaction of the Governor prior to promulgation of the Amendment Ordinance under Article 128 of the Constitution must be based on existence of objective conditions justifying the issuance of the Ordinance which has urgency as its primary consideration. Further this Court has the jurisdiction to examine whether the prerequisites provided in Article 128 of the Constitution for the exercise of power thereunder existed when the Amendment Ordinance was promulgated. If the answer to the above question is in the negative, the exercise of power will be without jurisdiction inviting an interference by this Court. The exercise of power by the Governor is hedged in by two conditions-precedent. Firstly , the Assembly should not be in session and second the circumstances must exist which render it necessary to take immediate action. It was further argued that to what purpose is the doing of something tied to a precondition if that something can be done in disregard of the precondition or prerequisite. 6. Notwithstanding the above arguments, Punjab filed its written statement and attached documents with that written statement which have given rise to further grounds of challenge. Having read those documents, the learned counsel for the petitioners as well as amicus curiae appointed by this Court focused their attention on the fresh ground which arose out of consideration of these documents. The new grounds, in a nub, are premised on the twin challenge of dictated exercise of power by Punjab and infringement of the Punjab Government Rules of Business 2011 (Rules of Business) in a manner of submission of the case regarding promulgation of the Amendment Ordinance to the Governor . Closely tied in with the challenge based on dictation is the broader question of republicanism and constitutional balance of federal and provincial powers. Since these petitions are being decided on the basis of the latter challenge, it will not be necessary to advert to the earlier challenge regarding the purported violations of the preconditions for the promulgation of an ordinance under Article 128 of the Constitution and its amenability before this Court. The documents submitted by Punjab: 7. The learned A.A.G filed a set of documents to support the contents of the written statement on behalf of Punjab. By collating these documents which make an interesting reading the process by which the relevant departments of the government proceeded to prepare a summary for the Chief Minister and finally culminated in the advice to the
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Governor for the ordinance to be promulgated is unraveled. The first document is entitled Summary for the Chief Minister and provides that: "Subject: CIVIL LAW REFORMS In a meeting chaired by the Prime Minister of Pakistan on 04.02.2021 on Prog ress Review Meeting on Prime Minister's Priority Sectors (5) (Annex-A), it was desired by the Prime Minister that the Punjab should consider making laws on the analogy of the federal laws titled as the Letters of Administration and Succession Certificates Act, 2020 (VI of 2020); the code of Civil Procedure (Amendment) Act, 2020 (VII of 2020); and, the Enforcement of Women's Property Rights Act, 2020 (XII of 2020). It has been desired by the law Minister that this Department should initiate Summary for the Chief Minister to comply with the directions of the Prime Minister mentioned above. 2. In view of the above, the drafts of the Punjab Letters of Administration and Succession Certificates Ordinance, 2021; the Code of Civil Procedure (Amendm ent) Ordinance, 2021; and the Punjab Enforcement of Women's Property Right Ordinance, 2021 are placed at Annex-B, c & D respectively . 3. The Chief Minister may be pleased to allow that the Draft Ordinances may kindly be approved by the Cabinet through circulation in terms of sub-rules (1) and (5) of rule 33, read with clause (b) of sub-rule (1) of 25 of the Punjab Government Rules of Business, 201 1.? 8. A reading of the summary to the Chief Minister , set out above, would bring forth two ineluctable conclusions. First the summary was prepared pursuant to a meeting chaired by the Prime Minister of Pakistan on 04.02.2021 on Progress Review Meeting of Prime Minister 's Poverty Sector . It further goes on to say that the Prime Minister had desired that Punjab (interestingly no other province was mentioned) should consider making laws on the analogy of the federal laws which include the Amendment Ordinance. It seems that at the federal level the CPC (Amendment Act) 2020 had already been promulgated and the Amendment Ordina nce is a mirror image of that law. The summary then states that "it has been desired by the Law Minister that this department should initiate summary for the Chief Minister to comply with the directions of the Prime Minister mentioned above." This part of the summary gives rise to the challenge based on the rule that the act of promulgation of the amendments suffers from the vice of dictation and therefore must be struck down. The summary seeks the permission of the Chief Minister to have the draft ordinance approved by the Cabinet through circulation in terms of sub-rule (1) and (5) of rule 33 read with clause "b" of sub-rule (1) of rule 25 of the Rules of Busines s. Another aspect which comes out starkly from a reading of the summa ry is that draft ordinance had already been sent to Punjab by Federal Government and which draft ordinance had been attached with the summary for approval by the Chief Minister and consequently by the Cabinet. Plainly , no deliberation took place at any level with the Punjab Government or internally within the department which was tasked with initiating the summary or the draft of the ordinance. This summary is dated 4.2.2021 and is sent by the Secretary Law, Govt. of the Punja b. It was countersigned by the Chief Secretary on 5.2.2021. The next document is dated 6.2.2021 and has been issued by the Secretary to Chief Minister and states as follows: "6. Chief Minister has seen and, in view of the exigency , is pleased to desire that the instant matter may be placed before the Provincial Cabinet, through circulation, for its consideration/ approval." 9. It can be seen that the Chief Minister on 6.2.2021 decided that the matter be placed before the Provincial Cabinet through circulation for its consideration / approval. The Chief Secretary countersigned this document on 7.2.2021. Now we come to another document which too is entitled "Summary for the chief Minister". It says that the "Provincial Cabinet has approved the draft ordinance placed in duplicate at Annexure A & B, Annexure C & D and Annexure E & F through circulation". It further states that "at the moment, Provincial Assembly of the Punjab is not in session and Governor of the Punjab is competent to promulgate the subject ordinance in terms of Article 128 of the Constitution". The most conspicuous aspect of this document is that it is also dated 4.2.2021 . Reading the three documents together presents a unique situation. The summary for the Chief Minister is initiated on 4.2.2021 which is approved by the Chief Minister on 6.2.2021 and by the Chief Secretary on 7.2.2021. However , in another summary for the Chief Minister , sent by the Secretary Law, it has clearly been stated that on 4.2.2021 the Provincial Cabinet had already approved the draft ordinance by circulation. Despite opportunities the learned A.A.G
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was not able to reconcile the glaring and egregious conflict in these documents and this Court is constrained to draw an inference that the entire process was laced in with undue haste and without following the procedural formalities. It was mechanically applied without a robust and inclusive decision-making process. It falls to be noted that the culmination of the process took place within less than a week in a matter having far-reaching consequences. Ordinance making power: 10. The power to promulgate ordinance vests in the Governor by Article 128 of the Constitution. In essence, it is a legislative power but in actuality it is exercised by the political executive. This is a contradiction in terms but this issue will not detain us any further as it does not arise in the present proce edings. What is relevant to be considered is that the power to promulgate an ordinance by the Governor is subject to the conditions that the Provincial Assembly is not in session and he is satisfied that the circumstances exist which render it necessary to take immediate action. Closely tied in with this concept is the principle that under a written constitution the courts' duty is to see that the constitution is not infringed and is preserved inviolate (The Bribery Commissioner v. Ranasinghe (1964) 2 All E.R. 785, 790). Although ordinance-making power is legislative but it must not be forgotten that the power vests in the political executive. Therefore it should be judged by the tests applicable to determine the validity of executive acts. The challenge to the Amendment Ordinance is therefore bifurcated into various grounds, the first of which entails that since the ordinance is an executive act and so its legality or otherwise must be considered on the touchstone of the principles of administrative law relating to executive acts such as illegality , irrationality and proced ural impropriety . I shall proceed to determine firstly whether the political executive of the province was compliant of the procedural formalities which must precede the promulgation of an ordinance and for the purpose reliance will be placed on the Rules of Business. While doing so, we will have to bear in mind the oft-quoted words of Lord Brightman in Chief Constable v Evans (1982) All ER 141, 154 that: "Judicial Review is concerned not with the decision, but with the decision-making process. Unless that restriction of the power of the court is observed, the court will, in any view, under the guise of preventing the abuse of power , be itself guilty of usurping power ." 11. It was stated by Chief Justice John Marshall in Marbury v Madison (1803) 5 US 137 that "to what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a governm ent with limited and unlimited powers is abolished, if these limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation." 12. The constitutional scheme envisages a limited government. It follows indubitably that there are spheres of powers delineated for each organ of the Federal as well as the Provincial Governments to operate. They cannot transgress those spheres and encroach upon other areas of activity . This is the cardinal feature of the Constitution and illuminates the meaning and ef fect of this centrality . 13. The Rules of Business 2011 have been enacted by virtue of powers conferred by Article 139 of the Constitution. Prior to an advice by the Chief Minister to the Governor for an ordinance to be promulgated, there are certain essential steps which are required to be followed under the Rules of Business for a draft ordinance to be made into law. An elaborate procedure has been laid down which not only acts as a bulwark against abuse but also ensures that sufficient consultation precedes the making of a law. The summary for the Chief Minister dated 4.2.2021 drafted by the Secretary Law and Parliamentary Affairs Department refers to the approval of the draft ordinance by the Cabinet through circulation in terms of sub-rule (1) and sub-rule (5) of Rule 33 read with clause `b' of sub-rule (1) of Rule 25 of the Rules of Business. Firstly , therefore, we will advert our attention to these rules. 14. Clause `b' of sub-rule (1) of Rule 25 provides for the disposal of business by the Cabinet by circulation. It states that cases referred to the Cabinet shall be disposed of inter alia by circulation amongst the Ministers and by discussion at a meeting of Committee of the Cabinet. Thus, while the disposal of business by the Cabinet could be at a meeting of the Cabinet, in case it is to be done by circulation, the twin conditions of circulation amongst the Ministers as well as a discussion at a meeting of a Committee of the Cabinet must take place simultaneously . No document was produced before this Court which showed a compliance of sub-clauses `b' and `c' of sub-rule (1) of1
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Rule 25 of the Rules of Business. For the purpose, the Cabinet may constitute Standing or Special Committees of the Cabinet and may assign to each a class of cases or a particular case. Sub-rule (2) envisages that unless the Cabinet authorizes otherwise, the decision of a Committee of the Cabinet shall be ratified by the Cabinet. Therefore, Rule 25 contains an entire procedure for the disposal of business by the Cabinet by circulation and as explicated, it entails not only circulation amongst the Ministers but also discussion at a meeting of a Committee of the Cabinet. Obviously this is to bridge the gap left by actual discussion at a meeting of the Cabinet and in case a business is to be disposed of by circulatio n, the intention is that at least a discussion must take place at a meeting of the Committee of the Cabinet. This procedure has gone abegging in the instant case and the matter was circulated amongst the Ministers and upon its approval it was sent to the Chief Minister for advising the Governor . 15. Rule 26 of the Rules of Business, 2011 deals with the manner of submission of cases to the Cabinet. It lays down an extensive procedure which must precede the submission of the cases to the Cabinet and is based on time honoured rule that decision must not be taken in haste, for enactment of laws has far reaching consequences on the lives of people and therefore must be preceded by extensive consultative process. Rule 26 states that for submission of a case to the Cabinet, the Secretary of the concerned department shall transmit to the Chief Secretary a concise and lucid memorandum of the case giving the background and relevant facts, the points for decision and the recommendations of the Minister concerned. Also by sub-rule (3), a summary for approval in principle of the proposed legislation or for approval of a bill or an ordinance shall also contain the salient features of such legislation. More importantly , by sub-rule (4) where a case concerns more than one department, the summary shall not be forwarded to the Cabinet unless the case has been considered by all the concerned departments. In the present case, not only the Amendment Ordinance was part of the summary but also other laws in respect of which the relevant departments had not been consulted and so there was no consideration by those departments priorly . Sub-rule (6) of Rule 26 clearly provides that all ordinances shall be submitted to the Cabinet after they have been vetted by Law and Parliamentary Affairs Department. Thus, the entire Rule 26 has a purpose and that purpose is for a meaningful and extensive consultation process to be undertaken punctiliously not only by the relevant departments but also that any draft of a bill or an ordinance must be vetted by the Law and Parliamentary Affairs Department. None of the ingredients of Rule 26 seem to have been complied with in the instant matter . Not only that the summary was not considered by the concerned departments but also the laws meant to be promulgated were not vetted by the Law and Parliamentary Affairs Department which in fact acted as a post office by complying with the directions issued by the Prime Minister without taking into consideration the procedures envisaged by the Rules of Business to be valid in all case and especially while promulgating an ordinance. 16. Rule 27 relates to the procedure regarding Cabin et decision by circulation. By clause "a" of sub-rule (2) of Rule 27, in the event of full agreement to the recommendation in the summary , the Chief Secretary shall treat it as a Cabinet decision and proceed further in terms of rule 28(12), which is to the following ef fect: "28 (12) The Chief Secretary shall circulate to the Ministers, a copy of the record prepared under sub-rule (11) as approved by the Chief Minister ." 17. The above rule states that the Chief Secretary shall circulate to the Ministers a copy of the record prepared under sub-rule (11) as approved by the Chief Minister . Sub-rule (11), in turn, obliges the Chief Secretary to attend all meetings of the Cabinet and prepare a brief record of the discussion and a record of the decisions without any statement or reasons thereof. Once again, no document was produced which would show clearly that the Chief Secretary proceeded to fulfill his obligations cast by Rule 28(11) and (12). Plainly , a reference to a brief record of the discussion in the matters of disposal of business by circulation has a nexus to the discussion at a meeting of a Committee of the Cabinet and correlating the two would clearly show the importance of such a discussion by the Committee of the Cabinet. 18. From the discussion above it is clear that decisions by circulation by the Cabine t must be based on certain prior actions and cannot be simply done on a summary prepared by the Secretary Law but must be compliant of the procedure laid down in Rules 25, 26 and 27 read cumulatively . The role of the Chief Secretary in this procedure is of pivotal importance and cannot be downgraded. In the instant matter , no document was produced which would show that the Chief Secretary perform ed his functions under the Rules of Business while circulating the2 3
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Amendment Ordinance for approval not only by the Ministers but also by the Chief Minister for onward transmission to the Governor to be enacted as the law . 19. Central to the present discussion are two more rules viz. Rule 33 and 35 of the Rules of Business. Rule 35 provides that the provisions of Rule 33 shall mutatis mutandis apply where the proposed legislation is an ordinance. This brings us to Rule 33 which contains crucial aspects with regard to any proposed legislation. It says that the department administratively concerned shall be responsible for determining the contents of the proposed legislation, for consulting the concerned departments where necessary and for obtaining the approval in principle of the Cabinet to the issue involv ed before asking Law and Parliamentary Affairs Department to give legal shape to the bill (read as ordinance for our purposes by virtue of the mandate of Rule 35). Thus, what comes out starkly from a reading of sub-rule (1) of Rule 33 is that the proposed legisla tion has to be initiated by the department concerned which shall obtain the approval of the Cabinet to the issue involved before asking the Law and Parliamentary Affairs Department to give legal shape to the bill. Therefore, even if a direction had been given by the Prime Minister , what was to be done by virtue of Rule 33 was for the concerned department to obtain the approval of the Cabinet regarding the issue and that approval was merely for the purposes of seeking directions to initiate the proposed legislation. Thereafter the matter should have been referred to the Law and Parliamentary Affairs Department for giving legal shape to the bill. What was done in the instant case was that the drafts of the laws received from the Federal Government were sent to the Chief Minister in a summary for approval and thereafter placed before the Cabinet to be approved by circulation. The first feature of rule 33 is that it conforms to the constitutional principle of autonomy to inhere in the Province and second for an independent consultation to be undertaken in any proposed legislation and a prior approval of the Cabinet must be obtained regarding initiation of such a process. Concurrently the role of Law and Parliamentary Affairs Department has been settled by sub-rule (1) of Rule 33 while clearly stating that the said department shall give legal shape to the bill. Sub-rule (3) further provides that while referring the legislation to the Law and Parliamentary Affairs Department after it has been approved in principle by the Cabinet, the concerned department shall send a memorandum indicating the lines…
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