Ghulam Nabi and others vs. Province of Sindh and others (Sindh High Court)

Separation/trichotomy of powers is a doctrine of constitutional law under which the three branches of government (executive, legislature, and judiciary) are kept separate. Such a system is implemented as a form of check and balances with each branch having separate functions that are not to be delegated to the other branches. Ideally, under this doctrine the legislature creates the law, the executive puts the law into effect, and the judiciary administers justice by interpreting the law, passing judgments on it and ensuring it is upheld.

Despite the existence of the aforesaid doctrine, however, the branches of Government in Pakistan oftentimes overstep their constitutional bounds into the domain of other branches. As an example, the Governor (part of the executive) in National Industrial Cooperative Credit Corporation vs. Province of Punjab (1992 PLD 462) stepped into the domain of the judiciary by passing “legislative judgment” through promulgation of the impugned ordinance in which certain cooperative societies were held to be “undesirable” and were to “cease to exist.” Such action was struck down by the Lahore High Court as neither the executive (exercising legislative powers by passing the ordinance) nor the legislature could pass judgments against individual persons or bodies (subject to certain circumstances). The ordinance that passed judgment against certain bodies was, therefore, held to be making inroads into the powers of the judiciary. Similar views have taken by the Supreme Court of the United States in U.S. vs. Lovett 328 US 3303 (1946) in which legislation stipulating that three named individuals would not be paid any salary from the Government funds was struck down.

Whilst the doctrine of separation of powers is a cornerstone of certain constitutions such as the United States, as per the Supreme Court of Pakistan (1983 PLD 457), it is not applicable in pristine form to Pakistan’s constitutional system. Pakistan’s Constitution it was held does not contain a clear demarcation of the functions entrusted to the each branch of government, being modelled on a parliamentary system. Consequently, there is substantial overlapping of the functions of the three arms of Government in Pakistan.

The Sindh High Court in its landmark decision titled Ghulam Nabi vs. Province of Sindh and others (1999 PLD 372 Kar) inter alia elaborates on the aforementioned holdings in the context of the ability of the executive to exercise judicial functions through passing legislation (through promulgation of an ordinance) which discriminates between citizens by expressly excluding certain individuals from benefits available under previous legislation. The SHC takes a view contrary to the LHC in National Industrial Cooperative Credit Corporation case (supra) relating to the ability of the legislature to pass “legislative judgment” against certain persons/bodies.

Ghulam Nabi and others vs. Province of Sindh and others (1999 PLD 372 Kar)

Facts:

The petitioners (“Petitioners”) own agricultural land supplied with irrigation water through watercourses from different canals under the command of Kotri, Sukur and Guddu Barrages. As per petitioner, the water supply available for irrigating his land was not adequate and so he along with other co-owners of the watercourse represented to the Provincial Government for sanction of a different outlet from the canal. The approval was accorded under the Sindh Irrigation Act 1897 by Irrigation and Power Department through letter dated 25 May 1997, subject to fulfilment of all legal formalities under the Sindh. As per Petitioners all such formalities were met. On 27 March 1999, however, the Governor of Sindh issued the Sindh Irrigation (Amendment) Ordinance (“Impugned Ordinance”). As per section 5 of the Impugned Ordinance 107 orders of approval to persons (including the Petitioners) were annulled without any compensation being payable for such annulments. The Petitioners, aggrieved by the same, called into question the constitutional validity of section 5 of the Impugned Ordinance before the Sindh High Court (“SHC”).

Arguments:

The Petitioners contended that:

·??????The Impugned Ordinance was ultra vires the legislative powers of the Governor under Article 128 of the Constitution.

·??????The provisions of section 5 were liable to be struck down for being mala fide, in derogation of vested rights and violative of principles of natural justice.

·??????The Ordinance amounted to deprivation of the Petitioners' right to property and to acquisition without compensation, and was, therefore, ultra vires the fundamental rights guaranteed under Article 24 of the Constitution.

·??????That selection of 107 landowners the Impugned Ordinance for adverse action out of 4000 sanctioned outlets in the province and 145 approvals accorded by the last Government, amounted to hostile discrimination forbidden by Article 25 of the Constitution.

The Respondents contended that:

·??????Only a limited quantity of irrigation water was available and by approval of the 107 outlets, through use of political clout, landowners whose lands were located at the tail of watercourses had been badly affected. Consequently, the Impugned Ordinance was promulgated in the public interest.

·??????A committee of experts reviewed all 145 outlets approved previously and found that the legal requirements were fulfilled in 38 cases and the sanctions accorded in the 107 cases were not feasible. Therefore, the Petitioners did not acquire any vested rights and no hostile discrimination had taken place.

Issue No. 1: Whether the Impugned Ordinance was ultra vires the legislative powers of the Governor under Article 128 of the Constitution?

Held: The Impugned Ordinance was not ultra vires the legislative powers of the Governor under Article 128 of the Constitution.

Reasoning:

·??????The Petitioners contended that the power to promulgate an ordinance was an extraordinary power by the Governor available to legislate in any emergency situation exercisable under Article 128(1) of the Constitution only when Assembly was not in session and the Governor was satisfied that there was a need to take immediate action. The Assembly had already been summoned to meet before the Impugned Ordinance and so the Ordinance should not have been passed.

·??????The Respondents contended that the consistent view of the superior courts has been that satisfaction as to immediate legislation on part of President or Governor was subjective and not justiciable (1976 PLD 600 Kar). Additionally, once the condition of Assembly not being in session was satisfied, the Governor has to see whether the object could be achieved through legislation through the ordinary process. The rules of Provincial Assembly show that private members bills are required to be taken up for consideration on the day fixed for discussion of such bills and have to be taken up in the order in which they were tabled.

·??????Whilst we are doubtful if earlier judgments regarding non-justiciability of the Governor’s satisfaction continue to remain good law after the judgments of the Supreme Court in cases such as Farooq Ahmad Khan Leghari vs. Federation of Pakistan (1999 PLD 57), provisions relating to private bills in the rules of the Provincial Assembly, we find force in the argument that the situation could not be appropriately dealt with through a private bill.

·??????The Petitioners then contended that while exercising ordinance making power under Article 128, the Governor was required to act on the advice of the Chief Minister as the matter did not fall within the discretion of the Governor.

·??????Whilst there could be no cavil with the proposition that the Governor was to act on advice of the Chief Minister under ordinary circumstances, on account of proclamation dated 30-10-1998 Article 130 has been suspended (on this date a Proclamation of Emergency was made under Article 232 by the Governor to: (i) assume all powers of the Provincial Government; (ii) suspend Articles 130 to 136; and (iii) make any reference to the Chief Minister to be construed as a reference to the Governor). The validity of this proclamation has been upheld by the Supreme Court in Syed Jalal Mahmood Shah vs. Federation of Pakistan (1999 PLD 395). Consequently, the Petitioners' arguments have no force.

Issue No. 2: Whether the provisions of section 5 were liable to be struck down for being mala fide, in derogation of vested rights and violative of principles of natural justice?

Held: The provisions of section 5 were not liable to be struck down for being mala fide or in derogation of vested rights and principles of natural justice.

Reasoning:

Judicial Review of Executive Action

·??????The Petitioners argued that approvals of the outlets in their favour had been duly acted upon and the Petitioners invested huge amounts by way of construction of watercourses and plantation of orchards etc. As they acquired vested rights it was claimed that the impugned action annulling the approvals were unlawful on grounds of: (i) mala fide; (ii) locus poententiae and (iii) denial of opportunity being heard.

·??????If the vested rights (i) matured in favour of Petitioners through fulfillment of all legal formalities, and (ii) the impugned action had been taken in exercise of executive power, we would unhesitatingly declared the same to be unlawful. Nevertheless, what was challenged was not executive action, but a legislative dispensation. It is well settled that (i) the motives of the Legislature cannot be gone into by Courts, (ii) the Legislature has absolute power to destroy rights, and (iii) the Legislature was under no obligation to accord prior hearing to those likely to be affected adversely by a new law.

Act vs. Ordinance

·??????The Petitioners then contended that though the Impugned Ordinance is a legislative Instrument, the Ordinance in substance was nothing more than an executive fiat. Furthermore, it was contended that it was brought about by the executive without debate and discussion by the legislature.

·??????Although it might be desirable, to enact legislation through a bill presented before the Legislature, once the conditions to the fact that the Assembly was not in session and the satisfaction of the Governor that immediate action is necessary are met, an Ordinance must be given the same effect as legislation by an Assembly under Article 128(2) of the Constitution.

Legislative Judgment

·??????The Petitioners thereafter argued that section 5(1) of the Impugned Ordinance destroying the legal rights of certain individuals amounted to “legislative judgment” and did not amount to legislation. The Legislature’s power to destroy or impair existing rights were confined only to laying down general rules and providing a mechanism for their enforcement. Individual cases it was argued was to be dealt with by the executive or the judiciary as per the Constitution.

·??????The argument made by the Petitioners relating to “legislative judgment” has force and has found favour in National Industrial Cooperative Credit Corporation vs. Province of Punjab (1992 PLD 462). In this case the Governor of Punjab promulgated an ordinance which named certain cooperative societies to be treated as undesirable and would cease to exist. It was held that the ordinance attempted to make inroads into the power of the judiciary and was beyond the competence of the Legislature. Similar views were taken by the Supreme Court of the United States in U.S. vs. Lovett (328 US 3303) in which legislation stipulating that three named individuals would not be paid any salary from the Government Funds was struck down. Such legislative measures (passing judgment against individuals) was against the principle of separation of powers as this was a judicial function.

·??????The crux of the matter, however, is that in the United States the theory of separation of power is viewed as a cornerstone of its constitution. In Fauji Foundation vs. Shamimur Rehman (1983 PLD 457) the Supreme Court of Pakistan held that the doctrine of separation of power whilst a basic norm of the American Constitution, the same was not applicable in pristine form to our constitutional system. Pakistan’s Constitution does not contain a clear demarcation of the functions entrusted to the executive, judiciary and legislature, being modelled on a parliamentary system. Consequently, there is substantial overlapping of functions of the three arms of Government in Pakistan. Accordingly, the provisions of the Impugned Ordinance could not be struck down for being a “legislative judgment” against particular individuals.

·??????We disagree with the contentions of the LHC in the National Industrial Credit Corporation case. It was observed the LHC in this case that the ratio of the judgment of the Supreme Court lost its significance upon incorporation of Article 2A of the Constitution which emphasized the stipulation in the Objective Resolution of the Constitution that the independence of the judiciary shall be fully secured. While we accept the view of independence of the judiciary, it is difficult to take the view that this concept had no existence prior to Article 2A.

Issue No. 3: Whether the Impugned Ordinance amounted to deprivation of Petitioners' right to property and was, therefore, ultra vires the fundamental rights guaranteed under Article 24 of the Constitution?

Held: The Impugned Ordinance does not violate the fundamental rights of the Petitioners under Article 24 of the Constitution.

Reasoning:

Watercourses as Property

·??????The Petitioners contended that the watercourses were personal properties of individual landowners under the Sindh Irrigation Act 1897 of which it was deprived without compensation which was violative of Article 24 of the Constitution.

·??????The Respondents whilst conceding that the watercourses were either individual properties or shared with other co-owners, contended that no individual could claim ownership to canal water which was transmitted through the watercourses. It was argued that the Impugned Ordinance did not purport to acquire the watercourses, but only annulled the orders granting irrigation water through various canals to the 107 individuals.

·??????The Respondents appears to be correct as though the right to receive water supply has been taken away, the watercourses continue to remain their individual properties.

Right to Receive Water

·??????To this the Petitioners contended that the right to receive water supply to every owner of a watercourse also amounts to property because otherwise ownership would be meaningless. Therefore, the same could not be taken away without compensation as per Article 24(2) of the Constitution.

·??????The acquisition of property is only one form of deprivation and the Constitution does not say that compensation is required to be paid in case of every deprivation of property. Therefore, prima facie the right to claim compensation would only arise when the deprivation takes the form of acquisition or possession.

·??????The Petitioners refer to the judgements of the Supreme Court of India, interpreting similar provisions in the Indian Constittuion. In Dwarkadas Shrinivas vs. Sholapor Spinning and Weaving Company (1954 AIR 119) it was held that the right to receive compensation arose in every case of deprivation of property. In Saghir Ahmad vs. State of U.P. (1954 AIR 728) the provisions of legislation creating a state monopoly was held to be unconstitutional and the contention that it was not so because buses continued to remain properties of their owners was repelled.

·??????The views taken by the Supreme Court of India, however, is not unanimous. Moreover, if every deprivation of property was to create a right to receive compensation then perhaps even taxing statutes could be questioned on the ground of being repugnant to Article 24(2). Therefore, the right to compensation arises only when the property is acquired or taken over.

Issue No. 4: Whether the selection of 107 landowners for adverse action amounted to hostile discrimination forbidden by Article 25 of the Constitution?

Held: The selection of 107 landowners for adverse action did in fact amount to hostile discrimination which was violative of Article 25 of the Constitution.

Reasoning:

·??????The Petitioners contended that whilst 4000 outlets had been granted of which 145 approvals were granted during the previous coalition Government, of such 145 persons only 107 persons’ approvals were, however, annulled. Consequently, it was argued that equal treatment as per Article 25 of the Constitution was not provided. As per well settled principles it was argued that the exclusion of certain applicants had to be based on reasonable grounds.

·??????The contention of the Petitioners has force as the Impugned Ordinance does not disclose any policy or principle upon which the 107 affected persons have been excluded. Although normally the burden to prove the invalidity of the classification is on the person who challenged it, when the legislation discloses no intelligible basis, such burden shifts upon the Respondents as held by the Supreme Court in Inamur Rehman vs. Federation of Pakistan (1992 SCMR 563).

·??????The Respondents contended that the 107 persons were treated differently than the other 38 persons because: (i) the requirement of legislation had not been fulfilled in these 107 cases; (ii) all 145 cases were examined by a high level committee of experts which recommended that the 107 sanctions were not technically feasible.

·??????In relation to (i), the 107 persons were also granted approval “subject to all legal … formalities” as with the other 38 persons. The Respondents at this stage, however, contends that no compliance was made. Without going into the controversy it may be observed that if the approval was subject to fulfilment of all formalities no legal rights would have been created (and therefore there would be no need to pass the Impugned Ordinance to annul the rights of the 107 persons). Consequently, the Respondents contention in (i) has no substance.

·??????In relation to (ii), no doubt the legislature can always require scrutiny of cases approvals through a body of experts, but such scrutiny can only be undertaken upon compliance with the essential principles of natural justice. One of the cardinal principles of natural justice is that no one should be condemned unheard. In the instant case, the scrutiny was conducted by the committee behind the back of the 107 persons. Such applicants could have convinced the committee to take a different view through evidence or otherwise. Whilst we are aware that unlike the executive the legislature is not under an obligation to afford hearing to those likely to be affected by the law intended to be made, when the law is questioned as being discriminatory and the only basis for classification is an enquiry conducted at the level of the executive, the enquiry must, at least, subscribe to the basic standards of fairness. The exclusion of the 107 persons, therefore, under the Impugned Ordinance cannot be treated as being made on a rational basis. Consequently, section 5 of the Impugned Ordinance is liable to be declared as violative of Article 25 of the Constitution.

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