Legacy Under Threat

2003 C L C LEGACY UNDER THREAT By Barrister Muhammad Ahmad Pansota, Advocate, Lahore The Supreme Court of Pakistan (SC) embarked upon the mission of putting an end to the colonial concept of granting illegal benefits in service (i.e. out of turn promotions) to Police Departments in Pakistan. Justice Amir Muslim Hani, as head of the three-member bench, led from the front in ensuring that the menace of out of promotion is dealt with once and for all. It was a daunting task for the SC to get its judgments on the point implemented in letter and spirit. The pathway leading to the final verdict passed by the SC was commendable as SC had to face serious challenges, which included, but were not limited to the bureaucratic hindrances caused by the top bureaucrats of the country in protecting a few blue-eyed officers of the government. The concept of out of turn promotions was declared unconstitutional in the SC judgment, reported as 2011 SCMR 408 (Muhammad Nadeem Arif v. IGP), followed by SC in PLD 2011 SC 516, with an addition that concept of out of turn promotions, in addition to being unconstitutional, is also unislamic. Inspite of the binding nature of these judgments on the executive, no step was taken by the federal and provincial governments to effectively implement the same .Instead a blind eye was always turned to the ratio put forth in these judgments. Eventually, while dealing with Sindh Police law and order case, a three-member bench of the SC headed by Justice Hani took up the issue of out of turn promotions because the bench considered the same to be one of the main reasons leading to structural degradation of Police in general and Sindh Police in particular. A landmark judgment, reported as 2013 SCMR 1752, was passed by the SC declaring out of turn promotions as illegal, unlawful, unconstitutional and unislamic. The Court also endeavored to highlight the 'pernicious' effects of the conferment of out of turn promotions ranging from the distortion of interse seniority of the civil servants to the infringement of valuable rights of meritorious civil servants. Reviews filed in the said judgments were also dismissed by the SC vide judgment reported as 2015 SCMR 456 and copies of both the afore-mentioned judgments were ordered to be sent to the Chief Secretaries of four provinces as well as the Secretary Establishment Division, with the direction to streamline the civil structure in conformity with the said judgments. The said judgments were implemented in letter and spirit in Sindh, however Punjab Government, in blatant disregard of these enabling judgments on the subject, did not take any positive. The said fact came to the knowledge of SC while hearing a civil appeal filed by a Punjab police officer against the judgment of Punjab Services Tribunal (PST), denying him out of turn promotion. Three member SC bench headed by Justice Hani on 26.01.2016 ordered for undoing of out of turn promotions in Punjab Police within a period of four week from thereon with directions to the Chief Secretary Punjab, Home Secretary Punjab and IG Punjab to file an implementation report as well. In the meantime, various officers of Punjab Police challenged the said order through filing of review petitions which were all dismissed through a single judgment reported as 2017 SCMR 206, whereby a protection was provided to those officers whose had attained out of turn promotions pursuant to an order of High Court, PST or SC, unless reviewed. Despite judicial cognizance of the matter, the reports were not filed until 20.03.2017. The most interesting aspect of the case was Home Secretary's objection to the report filed by the IGP wherein the IGP, after providing the out of turn promotes an opportunity of hearing, through speaking order withdrew the said promotions. This was unprecedented and the same was thoroughly appreciated by the bench. The role of AIG Legal, Punjab was thoroughly appreciated and others which includes the Advocate General Punjab were dealt with quite sternly by the SC. The affectees challenged the act of withdrawal of promotions as being contemptuous to the 2017 judgment as for them the said judgment had provided protection to all those who had attained out of turn promotions pursuant to orders of judicial forums. Three member SC bench headed by Justice Hani dismissed these petitions, declared the act of reviewing the orders by the IGP as valid and ordered for the de-notification of officers who were still enjoying out of turn promotions within ten days. The said judgment has yet not been reported, but is available on the website of the SC. Secretary Establishment Division and Punjab Government paid no heed whatsoever to the said judgment and/or other judgments on subject which lead to the filing of a contempt petitions by the police officers who, through filing of the contempt petition, sought enforcement of the judgment leading to de-notification of out of turn promotes. The said petition is being heard by a three-member bench of the SC headed by Justice Azmat Saeed. The bench seems quite cognizant of the whole situation wherein the blue-eyed officers in connivance with the Punjab Government have decided to take the SC head-on by flouting with enabling judgments on the issue. The actions of government speak volumes of their ill intent clearly a violation of Article 189 of the Constitution of 1973 requiring them to abide by the decisions of the SC in letter and spirit. Even SC has held time and again that all government functionaries are duty bound to follow the judgments of SC. Legacy of Justice Hani appears to be in grave danger and its SC's most important duty to protect it. Justice Hani undertook the most daunting exercise of reforming the civil structure of Pakistan with grace and vigor. He was an exceptional judge with superb command over service law matters. His judgments will not only provide guidance to the new entrants of the legal profession in ascertaining the true import of the law but the members of the Bench will also benefit from his wisdom, who gave new dimensions to the concept of judicial interpretation. His judgments are reflective of his legal acumen, diligence, fairness, neutrality and strong hold on the law. In the word of Chief Justice Saqib Nisar "His judgments are reflective of his legal acumen, diligence, fairness, neutrality and strong hold on the law. He tackled the issue of out of turn promotions in the police force and the civil service and his leading judgments in this and related matters have done much to reform these services. We can all admire this single-minded determination to cause justice to be done though the heavens may fall"