Constitutionality and legality
Constitutionality and legality legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Special Court comprising of three Judges of the High Court conducted the trial of respondent No. 1 at Islamabad and convicted him
During an interim stage of the trial the matter had come up before the Supreme Court, which took cognizance of the trial before the Special Court at Islamabad and gave certain directions to the Special Court (to proceed with the trial in the absence of accused)
However, in complete disregard of the fact that the Supreme Court had taken cognizance of the Special Court's trial at Islamabad and had sustained it the Lahore High Court entertained a writ petition filed by respondent No. 1, and then allowed it (declaring the formation of the special court as violative of law, and devoid of legal sanctity)
Counsel for the applicants submitted that the Lahore High Court had no territorial jurisdiction; that the jurisdiction of special courts is attended to in section 12 of the Criminal Law Amendment (Special Court) Act, 1976 and the purported judgment by the Lahore High Court was in derogation thereof; that the Lahore High Court did not have constitutional jurisdiction under any of the provisions of Article 199 of the Constitution; that the purported judgment of the Lahore High Court was ab initio void, illegal, unconstitutional and coram non judice; that the writ petition was not maintainable before the Lahore High Court; that the Lahore High Court assumed jurisdiction which exclusively vested in the Supreme Court, under section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976; and that the Lahore High Court had acted in complete derogation of the Constitution and of the law and that it is the duty of bar associations, bar councils and lawyers to ensure that the Constitution and the law is not violated and, if such illegalities are committed, to bring the same to the notice of the Supreme Court to rectify them
Validity
Supreme Court observed that the said submissions were substantial and legal points which required consideration
Supreme Court directed that the office shall number the present petitions and issue notices to the respondents, except respondent No. 1 who had since passed away, however, the legal heirs of respondent No. 1 may come forward to join these cases; that the record of the writ petition before the Lahore High Court, including the office file directing fixing of the case and constitution of special bench be requisitioned from the Lahore High Court and be put up along with present petitions on the date they are fixed before the Supreme Court for hearing
Applications were allowed accordingly.
Powers of Food Safety Officer (FSO) to seal premises under S.13(1)(c) of the Punjab Food Authority Act, 2011 ('the 2011 Act')
Constitutionality and legality
Held, that nowhere has S.13(1)(c) of the Act, 2011 provided when the sealing power could be invoked
Further, the act of "sealing" is not supported by a remedial mechanism as in the case of seizure of food , therefore, there is no legal remedy available to a food operator/business after the premises has been sealed
There was also no provision for de-sealing under the Act 2011
Similar powers actually have been vested in the FSO under S.18 of the Act 2011 for passing emergency prohibition orders whereby a food operator could be restrained from carrying on food business
Difference was that within twenty-four hours the aggrieved party could approach the Food authority for its redressal against such order i.e. under S.18(2) of the Act, 2011
So-called sealing power under S.13(1)(c) amounted to frustrating section 18 as well as the scheme of the Act, 2011
In the absence of any legislative policy/guidelines clearly spelling out when the sealing could take place and there being no remedial process provided against sealing, the power of sealing in the hands of the FSO could easily be applied arbitrarily which could not be permitted under constitutional scheme, as any such act would offend fundamental rights under Arts. 18, 23 & 25 of the Constitution
Power of sealing of premises by the FSO , in its present form, was therefore ex-facie discriminatory
High Court set-aside the proceedings made by the respondent/FSO declaring the same as ultra vires, illegal and without any legal effect and directed the (FSO) to hand-over seized bags of Whey Powder being animal feed to the petitioner
Constitutional petition was allowed, in circumstances.
Powers of Food Safety Officer to seal premises under S. 13(1)(c) of the Punjab Food Authority Act, 2011 ('the 2011 Act')
Constitutionality and legality
Power of sealing in the hands of the Food Safety Officer (FSO) could easily be applied arbitrarily which could not be permitted under the constitutional scheme, as any such act would offend fundamental rights under Arts. 18, 23 & 25 of the Constitution
Power of sealing of premises by the FSO, in its present form, was therefore ex facie discriminatory
Power of the FSO to "seal any premises" in S.13(1)(c) of the 2011 Act was declared to be unconstitutional and illegal, and it was further declared that any Rules, Regulations or SOPs promulgated under the 2011 Act dealing with "sealing of the premises" by the FSO in the absence of any sealing power under the Act were, ultra vires the 2011 Act and also illegal and without any legal effect.
In rape cases sexual history/character of rape victim was not relevant and it could not be used to discredit the victim's credibility
Furthermore the two-finger test" (TFT) or "virginity test" had no scientific justification or evidentiary relevance to determine the commission of the sexual assault of rape
Reporting sexual history of a rape survivor amounted to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Art. 14 of the Constitution
Principles relating to relevance of sexual history of rape victim and constitutionality of two-finger test" (TFT) or "virginity test" stated.
Constitutional petition before the Supreme Court regarding extension/re-appointment of the incumbent Chief of the Army Staff for a fresh term of three years in such office after expiry of his first term
Constitutionality and legality
Plea by Attorney General that in terms of Regulation No. 255 of the Army Regulations (Rules), 1998, retirement of an Army officer could temporarily be suspended or limited; that the Federal Government had the requisite authority to re-appoint or extend the services of an incumbent Chief of the Army Staff prior to his retirement if the exigencies of the service so required or the public interest so demanded
Held, that perusal of Regln. No.255, prima facie, showed that the said provision could be invoked after an officer had already retired from service and that was why the said Regulation spoke of suspension of retirement or limiting of retirement
Suspending a retirement or limiting a retirement before the retirement had actually taken effect may amount to putting the cart before the horse
Attorney-General was unable to refer to any provision in any legal instrument regarding extension in service of a Chief of the Army Staff upon completion of his first term in that office or for his re-appointment to that office after completion of his first term
Since present issue called for a detailed examination of the matter of extension/re-appointment of incumbent Chief of the Army Staff, therefore, he was made a respondent to present case
Supreme Court suspended the operation of the impugned order/notification in respect of extension/re-appointment of incumbent Chief of the Army Staff for another term in the said office
Matter was adjourned till next date of hearing.
Constitutional petition before the Supreme Court regarding extension/re-appointment of the incumbent Chief of the Army Staff for a fresh term of three years in such office after expiry of his first term
Constitutionality and legality
Examination of Art.243(4)(b) of the Constitution, the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954 and the Army Regulations (Rules), 1998 showed that none of the said laws contained any provision relating to the tenure of the Chief of the Army Staff (COAS) or of a General and whether the COAS could be reappointed or his term could be extended or his retirement could be limited or suspended under the Constitution or the law
Attorney-General categorically assured the Court that the Federal Government shall initiate the process to carry out the necessary legislation in this regard and sought a period of six months for getting the needful done
Supreme Court while exercising judicial restraint observed that considering that the COAS was responsible for the command, discipline, training, administration, organization and preparedness for war of the Army and was the Chief Executive in General Headquarters, it was appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Art.243 of the Constitution in this regard
Supreme Court directed that the current appointment of incumbent COAS as Chief of the Army Staff shall be subject to the said legislation and shall continue for a period of six months from present date, whereafter the new legislation shall determine his tenure and other terms and conditions of service
Petition was disposed of accordingly.
Incumbent Chief of the Army Staff (COAS) was provided an extension/re-appointment for a fresh term of three years in such office after expiry of his first term
Constitutionality and legality
No provision existed in the Army laws for the tenure and age of retirement of a General and as a consequence of the Chief of the Army Staff, as well as, for the extension of tenure or fresh appointment for another tenure
Summaries initiated by the Ministry of Defence and approved by the President, the Prime Minister and the Cabinet, for the reappointment, extension and fresh appointment of the incumbent COAS, were, therefore, meaningless and of no consequence
Exercising judicial restraint the Supreme Court gave an opportunity to the Federal Government in the light of the assurance of the Attorney-General to carry out appropriate legislation through an Act of Parliament within a period of six months
In order to preserve smooth functioning of the Army, the Supreme Court directed that the current status of the incumbent Chief of the Army Staff shall continue for a period of six months, whereafter the new legislation (Act of the Parliament) shall determine his tenure and other terms of his service; that in case the Federal Government remained unable to regulate the tenure and terms of service of a General and as a consequence of the COAS through an appropriate legislation by the Parliament, within a period of six months, the institutional practice of retirement of a General on completion of the tenure of three years shall stand enforced to regulate the tenure of incumbent COAS, from the date of his promotion to the rank of General and appointment as COAS, i.e. 29.11.2016, and the President shall, on advice of the Prime Minister, appoint a serving General officer as the new Chief of the Army Staff
Constitutional and legal flaws in the exercise of jurisdiction by the President, the Prime Minister, the Cabinet and the Ministry of Defence, in the extension, reappointment and appointment of the incumbent COAS highlighted.
Ingredients of due process of law, equity and fair play prima facie were not reflected in the present case from the minutes of meeting, wherein the recommendation to suspend the Mayor, ICT was given
Adverse order of suspension could not be passed without giving reasonable opportunity of hearing to defend which was a key factor in such type of proceedings, as such the requirement of due process of law enshrined in Art. 10-A of the Constitution of Pakistan had not been adhered to in the present case
Local Government Commission ('Commission') was bound under the law to give opportunity of hearing to the Mayor, ICT before such recommendation for his suspension
Commission ought to have asked the Mayor, ICT to rebut the allegations at the first instance before giving any recommendation (for his suspension) which was a key requirement
Furthermore the Mayor himself and three members of the Commission, were not available in the meeting, when the relevant additional agenda was discussed, wherein it was recommended to suspend the Mayor
If the Mayor, ICT remained under suspension, the Local Government representation of citizen of ICT would not be available
Irreparable loss and balance of convenience laid in favour of the Mayor who had not been afforded opportunity of hearing
High Court suspended the impugned notification till next date of hearing whereby the Mayor, ICT was suspended for 90 days.
Question as to whether the Supreme Court under Art.184(3) of the Constitution had the jurisdiction to determine the validity of the imposition and collection of taxes
[Per Qazi Faez Isa, J (Majority view): Only once the taxes imposed on customers of cellular companies by the Income Tax Ordinance, 2001, the Federal Excise Act, 2005, the Punjab Sales Tax on Services Act, 2012, the Sindh Sales Tax on Services Act, 2011, the Khyber Pakhtunkhwa Finance Act, 2013, and the Balochistan Sales Tax on Services Act, 2015, were declared contrary to the Constitution and struck down could their imposition and collection from subscribers/customers of cellular telecom companies be stopped
None of the said statutes, which had imposed the taxes, had been declared by a competent Court to be beyond the legislative competence of the legislature which had imposed them nor had it been declared that they contravened any constitutional provision
In exercise of power under Art.184(3) of the Constitution the Supreme Court may pass appropriate orders for the enforcement of Fundamental Rights
Said Fundamental Rights were those conferred by Chap. 1 of Part II of the Constitution; protection from taxation was not listed as one of these Fundamental Rights
Taxes could not be presumed to be against the public interest since taxes were spent for the benefit of the public
Supreme Court was generally slow in entertaining challenges to taxes which were imposed by the appropriate legislature in apparent conformity with the provisions of the Constitution
Interim order of the Supreme Court whereby the recovery of taxes by cellular companies was suspended did not record reasons nor did it determine that the imposition of the taxes was without jurisdiction
Supreme Court directed that the recovery of the taxes in question may be resumed by the cellular telecom companies, however, they were not allowed to impose any service/maintenance charge thereon as they had elected not to impose these charges, and that it would be unfair and unjust to demand that the cellular telecom companies make good the loss of the taxes that could not be recovered for the period during which their recovery was suspended by an interim order of the Supreme Court
Human rights case was disposed of accordingly
[Per Ijaz ul Ahsan, J dissenting (Minority view)]: Framers of the Constitution, had intentionally, deliberately and by conscious design placed no restriction on the types of fundamental rights for enforcement of which powers under Art.184(3) of the Constitution could and could not be exercised
As long as a matter met the two conditions, in that, it involved a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chap. I of Part II of the Constitution, it was immaterial whether the violation related to a fiscal matter, taxation, a matter involving property rights, personal freedoms or human liberties, the Supreme Court could and should exercise its powers to come to the rescue of the citizen whose rights may be at risk of being bulldozed, destroyed or encroached upon by the State with all the might and resources available to it
With a population of over 200 million out of which the number of cellular subscribers was approximately 150 million (in mid of the year 2018), there could be no two opinions that the present matter regarding imposition of taxes on, inter alia, topping up of mobile phone balance, affected and had repercussions on the public at large and was not an individual or private grievance
Issue in the present matter was that of alleged unlawful extraction of money in the form of advance tax under S.236 of the Income Tax Ordinance, 2001 from millions of cellular subscribers who did not fall within the relevant tax bracket for the purposes of the said Ordinance
Money being taken from cellular subscribers constituted 'property' as envisaged by Arts. 23 & 24 of the Constitution, therefore, the contention that the present matter did not involve the enforcement of any Fundamental Rights was incorrect
Apart from the Fundamental Rights contained in Chapter I of Part II of the Constitution, the deduction and collection of such advance tax was also seemingly a clear contravention of Art. 4(2)(a) of the Constitution
Contention that the Supreme Court did not have jurisdiction under Art. 184(3) of the Constitution to determine the validity of the imposition and collection of taxes which had been imposed pursuant to statutes passed by competent legislatures under the Constitution, was misconceived
While dealing with a matter under Art.184(3) of the Constitution, the Supreme Court was neither bound by the procedural trappings nor limitations of Art.199 of the Constitution, hence, the interim order of the Supreme Court whereby recovery of the taxes in question by the cellular telecom companies was suspended, was neither without jurisdiction, nor did it suffer from any legal, procedural or jurisdictional error, defect, flaw or infirmity whatsoever.
Plaintiff filed a suit seeking directions that the defendant-lady was not his real sister but was adopted by his parents
During pendency of suit plaintiff also filed an application for conducting DNA test of the defendant to determine that she was not his real sister
Said application was allowed by the High Court
Held, that a free lady could not be compelled to give a sample for DNA testing as it would violate her liberty
If a sample was forcibly taken from the defendant in the present case to determine her paternity it would violate her liberty, dignity and privacy which Art.14 of the Constitution guaranteed to a free person
If the proposed DNA testing was done it would neither confirm nor negate defendant's paternity
Same was also true for the plaintiff and those of his siblings whom he acknowledged
Father of the parties died sixteen years ago and his DNA could now only be accessed if his body was disinterred from the grave and a sample taken from his remains
Plaintiff's suit however was premised on the assumption that he was the son of his father, then, on the basis of such assumption, he denied defendant's paternity
Plaintiff's assertion that a certain person was his father was equally assumptive to the defendant asserting this
Suit filed by plaintiff was dismissed by the Supreme Court.
Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations was also illegal
No one, including any government, department or intelligence agency could curtail the fundamental right of freedom of speech, expression and press beyond the parameters mentioned in Art.19 of the Constitution.
According to S. 22 of the Anti-Terrorism Act, 1997 the High Court had no power to change the venue of execution of sentence of death of any condemned prisoner, rather, it empowered the Government to specify the manner, mode and place of execution of any sentence passed under the said Act
Furthermore R.354 of the Pakistan Prisons Rules, 1978 provided that executions shall normally take place at the District Prison of the District in which the prisoner was sentenced
Present convict had been found guilty of raping and murdering a minor, which was a barbaric act, but a barbaric crime did not have to be visited with a barbaric penalty such as public hanging
Dignity and self-respect of every man had become inviolable and such guarantee was not subject to law but was an unqualified guarantee
If the death sentence of present convict was conducted publicly, there were chances of public aggression which may cause danger to his life before execution of his death sentence and the lives of public
Constitutional petition was dismissed accordingly.
Promotions of police officers were to be fixed/decided on the basis of the required standards provided in the service rules
Accelerated promotions could not be accorded on the basis of an officer's performance in a sports competition
Policy to the extent of accelerated promotions on sports basis was not sustainable, being violative of the service laws and the provisions of the Constitution.
Acts of gallantry did not justify out-of-turn promotions as they necessarily lead to impingement of the Fundamental Rights of fellow officers in terms of blocking their smooth progression of careers and impinging their respect and honour
Supreme Court directed the concerned officials and authorities to fix the seniority of all the police officers who were given out of turn promotion along with their batch-mates, as if they were never given out of turn promotion
Review petition was dismissed accordingly.
Both provisions were substantively similar in nature and catered to the same purpose, i.e., out-of-turn promotion, which was unconstitutional and a nullity ab initio; both provisions created a new exception or category of promotion to the existing framework of service rules, in the name of out of turn promotion, which was alien to the concept and scheme of civil service rules, read with Arts. 4, 9, 14, 18, 25, 240 & 242 of the Constitution; both provisions overtly militated against the settled law and principles of promotion based on merit, inter se seniority, annual performance reports etc.; both provisions were discriminatory and violative of the Fundamental Rights of other civil servants who had been affected by out of turn promotions, despite the fact that they may stand a notch up in merit, inter se seniority and even competence from the beneficiary of such promotions.
Provincial Higher Education Department issued a notification setting out the criteria for appointment to post of Vice Chancellors for public sector universities
Constitutionality and legality
In view of Entry 12 of Part II of Fourth Schedule to the Constitution, the power to determine standards in institutions of higher education and research, scientific and technical institutions laid with the Parliament to the exclusion of the Provincial Assemblies
Such power to determine standards was all-encompassing and included the laying down of eligibility criteria for appointment of Vice Chancellors in public sector universities
Provinces could not be allowed to read anything into the Higher Education Commission Ordinance, 2002 so as to carve out for themselves the power to prescribe criteria for appointment of Vice Chancellors of public sector universities
Notification whereby Provincial Higher Education Department laid down the qualification, experience and other criteria for the post of Vice Chancellors of public sector universities was an action extra juris and was accordingly struck down
High Court directed that the Higher Education Commission should lay down criteria for appointment of Vice Chancellors to public sector universities by specifying concrete and clear terms of the said criteria, and that the Provincial Government should initiate a fresh process for appointment of Vice Chancellors
Constitutional petition was allowed accordingly.
Use of state funds to make renovations and improvements to the private residence of the President under the pretext of security upgrades
Constitutionality and legality
Office of the Public Protector (an independent Constitutional institution) found that the "security upgrades" were no more than luxurious improvements, and that the President should repay the amounts expended on "unlawful" upgrades
President and National Assembly (Parliament) failed to take the remedial action recommended by the Public Protector
National Assembly passed a resolution to exonerate the President from any liability
Held, that such conduct of the President and the National Assembly was inconsistent with their constitutional obligations, and hence constituted breach of the Constitution
Remedial action taken by the Public Protector was binding
By failing to comply with the Public Protector's order the President failed to uphold, defend and respect the Constitution
Power of the Public Protector to take appropriate remedial action had legal effect and was binding, therefore, neither the President nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect, unless it had been set aside through a proper judicial process
National Assembly's resolution, based on the findings of Minister of Police, exonerating the President from liability, was inconsistent with the Constitution and unlawful
Constitutional Court (apex court) ordered that President must pay for the non-security measures at his private residence and should reprimand the Ministers involved in the expenditure; that the resolution passed by the National Assembly absolving the President from liability was invalid and accordingly set aside, and that the President, Minister of Police, and the National Assembly should pay the present applicants' costs, including those of the counsel.
Provincial Environmental Protection Agency ("EPA") and its Director General working as delegates of the Provincial Government
Effect
Mockery of environmental justice and fraud on the rights of the people
Contention of petitioners that Provincial Environmental Protection Agency ("EPA"), in its current form was not operating as an autonomous agency but as an attached department of the Provincial Government; that Director General of "EPA" hurriedly granted the Environmental Impact Assessment ("EIA") approval for the project in question, where after the Lahore Development Authority ("LDA") mobilized the works and illegally commenced the construction of the project
Validity
Provincial Environmental Protection Agency ("EPA"), in its current form, was operating as a delegate of the Provincial Government, and functioning as a government agency rather than an independent environmental regulator
Any regulator, which was controlled and dictated by the parties it regulated (in the present case the Provincial Government), was in fact under regulatory capture and its decisions and approvals had no credence, legal value or moral authority and amounted to fraud on the rights of the people and a mockery of environmental justice
Section 5 of Punjab Environmental Protection Act, 1997, stated that EPA shall be headed by the Director General, implying that there were other members that constituted the said Agency, but in fact, presently EPA was one person i.e., the Director General (DG)
Current Director General, EPA, was a serving civil servant appointed through promotion to the post of Director General
Post of Director General, EPA, was not a cadre post and could not be filled through promotion, besides a person who was already an employee of the Provincial Government could not be appointed to head a statutory regulator, which under the law was to grant approval of projects proposed by the Provincial Government
Environmental Impact Assessment ("EIA") approval for the project in question proposed by LDA, an Authority headed by the Provincial Chief Minister and controlled by other members of the Provincial Government could not possibly be refused by the Director General, EPA, who was himself a grade 20 employee of the same government, which also controlled his appointment and transfer
Provincial Environmental Protection Agency ("EPA"), in such circumstances could not perform its assigned role under Punjab Environmental Protection Act, 1997, hence, the entire exercise of EIA approval was a sham unless and until, the post of Director General, EPA, was filled through an open and transparent recruitment process keeping in view the required qualifications for the post
Impugned approval of Director General, EPA for the project in question was a result of dictation and non-application of mind and hence bad in law
High Court set aside the Environmental Impact Assessment (EIA) approval for the project in question and struck down the initiation of the said project by LDA as being unconstitutional
Constitutional petition was allowed accordingly.
Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Reglns. 10(5), 11
Constitution of Pakistan, Arts.9, 14 & 199
Public interest litigation
Environmental justice
Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")
Constitutionality and legality
Environmental Impact Assessment (EIA)
Even though the Lahore Development Authority ("LDA") had submitted an Environmental Impact Assessment (EIA) for approval with the Provincial Environmental Protection Agency (EPA), it did not think it important to wait for the approval before commencing the project in question
Environmental Impact Assessment (EIA) was prepared and submitted in the present case as a routine requirement and not for any meaningful feedback
Provincial Environmental Protection Agency (EPA) was under an obligation to either confirm that the EIA was complete for purposes of initiation of the review process, or require the proponent to submit additional information or return the EIA to the proponent for revision clearly listing the points requiring further study and discussion
Provincial Environmental Protection Agency (EPA) had to pass a speaking order explaining the option exercised by it
No such order has been passed in the present case
Environmental Impact Assessment (EIA) approval passed by the Provincial Environmental Protection Agency (EPA) in the present case did not refer to or address a single objection raised by the public during public participation
Cosmetic public participation exercise conducted by the EPA amounted to playing a fraud on the people
Under the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, the exercise of public participation required EPA to solicit the views of other concerned government agencies which included departments, attached departments, development authorities, local authority, company or a body corporate established or controlled by the Government
No such exercise was undertaken in the present case
Section 5(6) of the Punjab Environmental Protection Act, 1997, provided that for the assistance of the EPA in the discharge of its functions, the Government shall establish Advisory Committees for various sectors and appoint as members, eminent representatives of the relevant sector, educational institutions, research institutes and non-governmental organizations
No such Advisory Committee had so far been established by the Government with regard to the project in question
Regulation 11(2) of Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, mandated that the EPA was to consult a Committee of Experts constituted for the purpose and may also solicit the views of the sectoral Advisory Committees constituted by the Government
However in the present case no such Committee of Experts was constituted
Approval for the project in question was granted by the DG, EPA, in contravention of Regln.11(4) of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, as he did not consider the comments of the public and the government agencies received during the public hearing, the report of the committee of experts, and the report of the sectoral advisory committee
High Court struck down the initiation of the Signal Free Corridor Project by LDA as being unconstitutional and set-aside the Environmental Impact Assessment (EIA) approval for the project by declaring that the same was granted by DG, EPA, in violation of the right to life, dignity of the citizenry besides being offensive to environmental justice and due process protected under Arts.4 & 10A of the Constitution
High Court directed the National Accountability Bureau (NAB) to initiate an inquiry against the Director General, Provincial Environmental Protection Agency (EPA) for failing to comply with the law and to account for the loss of public money
Constitutional petition was allowed accordingly.
Lahore Development Authority ("LDA") usurping and encroaching upon the powers and authority devolved on to the elected representatives of the Local Government
Section 13(5) of Lahore Development Authority Act, 1975, specifically provided that a "Government Agency" (which includes a local government) shall not prepare a planning or development scheme within the Area except with the concurrence of LDA
Similarly, LDA had the power to prepare housing, building infrastructure services, commercial and semi-commercial projects (section 13A) or do land use classification (section 14), make master plan (section 14A ), or give direction to the local government to execute a scheme in consultation with LDA, or take over and maintain any of the works and services in that area, to provide amenity in relation to the land which in the opinion of the LDA ought to be provided and to enforce regulations on behalf of LDA (section 15)
Lahore Development Authority (LDA) also had the powers to execute schemes (section 16); to declare any locality within an area to be controlled area and issue such directions for the prevention of haphazard growth or encroachments and unauthorized construction in such area (section 18); to remove sources of pollution (section 20); to impose betterment fee (sections 23 & 24); to impose rates, fees, surcharges or other charges and fines (section 28); to extension time and cancel approved schemes (sections 34A and 34B); to punish offenders (section 35); to convert property for different use (section 38)
Lahore Development Authority Act, 1975, was to override other laws (section 46)
All such powers provided to LDA under the Lahore Development Authority Act, 1975, usurped the responsibilities and authorities devolved to the local government under Punjab Local Government Act , 2013, and offended the constitutional mandate of Art.140A of the Constitution
Lahore Development Authority (LDA) could not assume jurisdiction or interfere in the political, administrative and financial powers devolved on to the local government through Punjab Local Government Act, 2013, under Article 140A of the Constitution
High Court declared that the powers and functions of LDA under Ss.6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 & 46 of Lahore Development Authority Act, 1975, to the extent that they usurped, trumped, encroached, diluted and abridged the powers, responsibility and authority devolved on to the elected representatives of the Local Government System under Art.140A of the Constitution through Punjab Local Government Act, 2013, were ultra vires Arts.9, 14, 17 & 25 of the Constitution and offensive to Arts.32, 37(i) & 140A of the Constitution; that proceedings with the Signal Free Corridor Project by LDA would be in violation of Art. 140A of the Constitution, therefore, initiation of the said Project by LDA was struck down as being unconstitutional
High Court directed that till such time the local government system was functionalized by its elected representatives, LDA may continue with its day-to-day repair and maintenance work within its area of jurisdiction and complete all the pending projects; that LDA may propose the establishment of the project in question to the elected local government system and it was up to the elected Local Government to approve the same in accordance with law; that LDA proceeded with the project in question at the cost of causing loss to the public exchequer and inconvenience to the residents of Lahore, thus, National Accountability Bureau (NAB) should initiate an inquiry against the DG, LDA for failing to comply with the law and to account for the loss of public money
Constitutional petition was allowed accordingly.
Provincial Environmental Protection Agency ("EPA") and its Director General working as delegates of the Provincial Government
Effect
Mockery of environmental justice and fraud on the rights of the people
Contention of petitioners that Provincial Environmental Protection Agency ("EPA"), in its current form was not operating as an autonomous agency but as an attached department of the Provincial Government; that Director General of "EPA" hurriedly granted the Environmental Impact Assessment ("EIA") approval for the project in question, where after the Lahore Development Authority ("LDA") mobilized the works and illegally commenced the construction of the project
Validity
Provincial Environmental Protection Agency ("EPA"), in its current form, was operating as a delegate of the Provincial Government, and functioning as a government agency rather than an independent environmental regulator
Any regulator, which was controlled and dictated by the parties it regulated (in the present case the Provincial Government), was in fact under regulatory capture and its decisions and approvals had no credence, legal value or moral authority and amounted to fraud on the rights of the people and a mockery of environmental justice
Section 5 of Punjab Environmental Protection Act, 1997, stated that EPA shall be headed by the Director General, implying that there were other members that constituted the said Agency, but in fact, presently EPA was one person i.e., the Director General (DG)
Current Director General, EPA, was a serving civil servant appointed through promotion to the post of Director General
Post of Director General, EPA, was not a cadre post and could not be filled through promotion, besides a person who was already an employee of the Provincial Government could not be appointed to head a statutory regulator, which under the law was to grant approval of projects proposed by the Provincial Government
Environmental Impact Assessment ("EIA") approval for the project in question proposed by LDA, an Authority headed by the Provincial Chief Minister and controlled by other members of the Provincial Government could not possibly be refused by the Director General, EPA, who was himself a grade 20 employee of the same government, which also controlled his appointment and transfer
Provincial Environmental Protection Agency ("EPA"), in such circumstances could not perform its assigned role under Punjab Environmental Protection Act, 1997, hence, the entire exercise of EIA approval was a sham unless and until, the post of Director General, EPA, was filled through an open and transparent recruitment process keeping in view the required qualifications for the post
Impugned approval of Director General, EPA for the project in question was a result of dictation and non-application of mind and hence bad in law
High Court set aside the Environmental Impact Assessment (EIA) approval for the project in question and struck down the initiation of the said project by LDA as being unconstitutional
Constitutional petition was allowed accordingly.
Section 10A of Punjab Local Government Act, 2013["Ouster clause"] ousting jurisdiction of any court, officer or authority to review or correct any delimitation of a Union Council or ward after the notification of the election schedule
Constitutionality and legality
Constitutional jurisdiction of High Court and Election Commission of Pakistan
Scope
"Reading down" a provision of a statute
Scope
Section 10A of the Punjab Local Government Act, 2013 ["Ouster clause"] not only attempted to completely curtail judicial power of the Constitutional Court, it also put fetters on the exercise of the constitutional authority of the Election Commission of Pakistan
Section 10A of said Act could not abridge or curtail the constitutional jurisdiction of the High Court to judicially review the orders, notifications and the acts of the executive i.e., the Delimitation Authority and Delimitation Officer
Section 10A purportedly ousted the constitutional jurisdiction of the Election Commission of Pakistan from performing its constitutional role under Arts. 140A(2), 218(3) & 219(d) of the Constitution, which was neither conceivable nor permissible
High Court read down S.10A of the Punjab Local Government Act, 2013 and declared that the ouster clause did not in any manner curtail or abridge the jurisdiction of the Constitutional Court or the Election Commission of Pakistan
Constitutional petition was allowed accordingly.
Increase made by the authorities in the rate of cess from Rs.13/ MMBTU to Rs.100/ MMBTU in a period of few months was nothing but exploitation
Cess in question was imposed to provide for infrastructure development of some intended projects, however so far no concrete step had been taken for initiation of such projects, but heavy taxes had (already) been imposed in such regard
Constitution did not allow any sort of exploitation and did not permit economic and social wrongs
Ultimate burden of the cess was to fall on the ordinary citizens of the country as the industrial consumers would be forced to recover the same from them through raising prices of the products manufactured by them
Such demand, imposition or levy of cess was in direct violation of the fundamental rights of the citizens
Gas Infrastructure Development Cess Act, 2011 was declared as ultra vires of the Constitution
Constitutional petition was allowed accordingly.
Entry No. 2 in Part-II of the Federal Legislative List (contained in Fourth Schedule of the Constitution) pertained to natural gas
Entries specified in Part-II of the Federal Legislative List had inextricably been linked to the Council of Common Interests (CCI) constituted under Art.153 of the Constitution
Any legislative or executive action taken with regard to the matters enumerated in Part-II of the Federal Legislative List in bypassing the Council meant that the fundamental rights of the people belonging to different federating units had been usurped, and their right to be treated in accordance with law had been defeated
Any policy regulated or implemented, more particularly the imposition of taxes, which eventually affected the public at large, in such matters without approval of the Council would also mean that the due process of law as envisaged under Art.4 of the Constitution had been violated
Council neither prepared, approved or sanctioned the Bill for Gas Infrastructure Development Cess nor regulated any policy in such regard, therefore, the impugned levy was a transgression in the constitutional mandate of the Council bestowed to it by virtue of Arts.153 & 154 of the Constitution and the fundamental right of the people to be governed in accordance with law had been defeated
Moreover, the spirit behind the division of Federal Legislative List in two parts had also been violated
Gas Infrastructure Development Cess Act, 2011 was declared as ultra vires of the Constitution
Constitutional petition was allowed accordingly.
Cess in question was to be utilized for the purpose of infrastructure development of Iran-Pakistan (Gas) Pipeline Project, Turkmenistan-Afghanistan-Pakistan-India(Gas) Pipeline Project, LNG or other projects or for price equalization of other imported alternate fuels including LPG
Initially, under Second Schedule of Gas Infrastructure Development Cess Act, 2011, Federal Government imposed the cess in question on the industrial sector at the rate of Rs.13 per MMBTU, however same was increased manifold up to Rs.669.23 per MMBTU
Subsequently Oil and Gas Regulatory Authority issued S.R.Os., whereby all consumers engaged in processing of industrial raw material into value added finished products, including hotel industries and other industries providing finished goods and commodities for the public, irrespective of volume of gas consumed, were brought under the net of the cess at the rate of Rs.460 per MMBTU with minimum charges of Rs.15510.78 per month
Subsequently Federal Government further increased the cess through a simple press release issued by Oil and Gas Regulatory Authority
Plea of petitioners/consumers was that increase in cess made in the said manner and its recovery from the industrial consumers was void ab initio, discriminatory and ultra vires of the Constitution
Validity
In the Second Schedule of Gas Infrastructure Development Cess Act, 2011, there was great disparity of cess rates both region-wise and with regard to the kind of industry, which was based on no intelligible differentia nor any sound rationale, and it also amounted to excessive delegation of legislative powers
For giving legal and constitutional validity and legitimacy to such discriminatory treatment, neither any meeting of Council of Common Interest ("the Council") was held nor consent of its constituting members was obtained, which was a must in the circumstances
Clear case of discrimination was made out by enacting provisions of the Gas Infrastructure Development Cess Act, 2011 because Art. 158 of the Constitution provided that the Province in which the well head of natural gas was situated, shall have precedence over other parts of the country in meeting the requirements of that well head, but in the impugned Act, Provinces producing natural gas had not been given any concession or relief whatsoever
Levying and recovering of cess on random rates clearly offended mandatory and commanding provisions of Art. 158 of the Constitution
Bill of the impugned Act was tabled directly before the Parliament, whereas in a Parliamentary system of Government and because of Federal Government Business Rules, it was mandatory that before tabling any Bill before the Parliament for legislation, it should be placed before the Federal Cabinet presided over by the Prime Minister, and if the cabinet approved the same, then the Bill could be tabled before the Parliament
Article 78 of the Constitution required that all revenue and money received by the Federal Government shall be made part of Federal Consolidated Fund, while Art. 81 of the Constitution provided those expenditure which were to be charged upon the said Fund
Impugned cess was neither a tax nor fell within the definition of "revenue" of the kind which had to be deposited in the Federal Consolidated Fund nor the Gas Infrastructure Development costs could be charged on the Federal Consolidated Fund
Question as to how the cess was managed and by whom and under whose authority, and under which head of account the cess amount was deposited, was not certain
Even if the cess was authorized by any authority of the Federal Government, it was not clearly enumerated in any of the provisions relating to financial matters of the Federal Government
Cess could not be collected on future prospects of any proposed or planned facility, which was yet to be provided
Iran-Pakistan (Gas) Pipeline Project was not yet signed nor made functional till date, while the cess was being collected for the last many years from industrial and other alike consumers of natural gas on the proposition that on completion of the gas pipeline projects they would be provided increased supply of natural gas to meet their future requirements
Very fate of gas pipeline projects in question was uncertain and unpredictable
Imposition, levy and collection of the cess in question was irrational and unreasonable because in case industrial consumers after paying millions of rupees of cess, closed down their businesses, they would get nothing in return for the cess they had paid in advance
No provision of the Constitution, expressly or impliedly, authorized the Parliament or the Government to impose, levy or collect the cess in question from industrial consumers of natural gas
Provisions of the impugned Act, imposing, levying and recovering the cess in question, were absolutely expropriatory, exploitative and constitutionally illegitimate
Provisions and Second Schedule of the Gas Infrastructure Development Cess Act, 2011 were in conflict with clear provisions of the Constitution regarding imposition of taxes and collection of revenues etc. and therefore were void ab initio
Constitutional petition was allowed accordingly and High Court directed that Government should return the cess in question lump sum to the petitioners/ consumers within a reasonable time and in case it was impossible or impractical to do the same, then handsome amount of the same should be adjusted in the monthly consumption bill of each petitioner/ consumer.
"Constitutionality and legality", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124942420
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