ISLAMABAD: The Supreme Court ruled that the High Courts do not have suo motu jurisdiction and cannot on their motion declare the executive policy as unconstitutional and illegal.
In 2009, Federal Government Employees Housing Authority (FGEHA) launched a housing society called Green Enclave-I in Bara Kahu, Islamabad; wherein plots were allotted to members on the policy of first come, first serve.
The FGEHA then acquired additional land for establishing the Bara Kahu Extension Scheme. For that purpose, the FGEHA decided to change its policy (Revised Policy) from first come, first serve to age-wise seniority.
Plot allotment case: Federal govt employees challenge IHC verdict
A Division Bench of the Islamabad High Court (IHC) declared the Revised Policy as one formulated such that it enables elite capture and windfall gains of a few individuals but is not in the public interest. Further that the Revised Policy benefits incompetent, corrupt or convicted employees of the federal government.
A three-judge bench, headed by Justice Munib Akhtar and comprising Justice Muhammad Ali Mazhar and Justice Ayesha A Malik heard the appeals against the IHC’s judgment dated 03-02-2022. It set aside the IHC’s judgment as being in violation of the Constitution and the law, and remanded the matter to the High Court to hear Ednan Syed’s appeal and the writ petitions afresh giving everyone an opportunity to respond to the challenges made, and decide within 90 days.
The judgment authored by Justice Ayesha said that the scope and ambit of the proceedings before the IHC Division Bench in Ednan Syed’s appeal and subsequent WPs were limited to the extent of the prayers.
She wrote that the impugned judgment has not attended to any of stated prayers nor decided the matter on its merits. The impugned judgment should have confined itself to the grounds and prayers of the Ednan Syed’s petition and nothing beyond that. However, it entirety appears to only focus on the Revised Policy, and the High Court exceeded its authority by declaring the Revised Policy as unconstitutional, and decided the matter beyond their jurisdictional domain.
The SC judgment also said that Article 10A of the Constitution requires that everyone is entitled to a fair trial and due process. It necessitates the requirement of being heard so that the judicial order reflects the contention of every party before the court.
To fulfil the requirements of being heard, it is settled that the relevant party must be issued first a notice and then be allowed a hearing.
In these cases, the timeline of events is critical and highlights the plight of the petitioners before us. The Revised Policy came into force on 02.11.2021, whereas the Division Bench concluded the hearing of the Ednan Syed’s appeal and subsequent WPs by reserving the said matters for judgment on 22.11.2021.
Justice Ayesha wrote that the constitution does not envision that the courts are bestowed with unfettered powers that can be exercised within the disguise of judicial review. The judicial power is the power that is defined by the Constitution and law. It may vary from one institution to the other, such as this Court’s jurisdiction is distinct from that of the High Court.
However, the underlying principle remains that the judicial review of legislative and executive actions is not an unlimited or unbridled authority of the courts but the one circumscribed or confided by the Constitution and the law. The gateway to invoke judicial review of the High Court is only when there is an application or appeal by the aggrieved or affected party.
In the absence of any such application, the High Court may enter into the domain of judicial overreach, which is the exercise of power without any legal basis and the same falls within the ambit of interference and encroachment on the legislative and executive domain. “Consequently, such absolute judicial expansionism offends the principle of separation of powers. Therefore, the impugned judgment clearly falls within the scope of judicial overreach and infringe the Constitution,” the SC’s judgment concluded.
Copyright Business Recorder, 2024
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