Under constitution of Islamic Republic of Pakistan, Courts have been empowered to give orders and directions in relation to Writ petition or by Suo motu. In order to determine the scope and extent of powers given to High Courts under Article 199 and to Administrative courts and tribunals under Article 212, comparison would be made in details
- Article 199 only consist of Writ Petitions. Although they lack Suo Motu powers but in exceptional circumstances [1] direction may be granted. Where Article 212 accepts petitions of party establishing grounds under Clause 1 a, b, c of the constitution.
- Scope of Art. 199 has much wider scope, under clause 1(a) they may direct a person to act within law or to refrain such person from unlawful acts. Under Clause 1(b) deals with cases of Hebeas Corpus, in order to produce person in court held in custody or public officer acting beyond its authorities. Fundamental rights provided under Chapter 1 Part II, are described in Clause 1 (c) which triggers striking an act of parliament which are against such rights Constitution and against Natural Justice [2]. Article 212 on other hand, may only set aside or confirm the decisions of local authority with relation to Terms and conditions of Civil servant under Article 212, 1(a), which would include wages, promotion and other matters of employees. Claim under Clause 1(b) can be brought by any person effected from tortious acts of government or it’s employees.
- Upon acceptance of writ petition under Article 199 (1), does not render the decision of lower courts void, but it would be subject to injunction/mandamus if certain conditions are met. But in case establishment of claim under Article 212 (2), all other courts losses the right to grant injunction over ongoing proceedings or pending claims before Administrative courts and Tribunals.
[1] [2001 SCMR 1822]
[1] [PLD 2002 Kar 131]. - Article 1 (B) has no such requirements of locus standi, hence claim could be brought by any person. However, Clause (A and B) of article 199 must be brought by Aggrieved party. Person must also come to court with clean hands. Article 212(1) deals with Civil servants.
- Article 199 is discretionary in nature, where equitable relief would be granted as immoral relief or compensation in case of false imprisonment. Where Article 212 remedies are applicable to achieve proper justice. Leave to appeal in Supreme can also be granted which must include question of law related to public importance, which can be raised by party or courts itself.
Locus standi
Petition can only be brought by effected party, whose rights have been infringed. As it was held in [3], that writ petition must establish direct/indirect injury to himself and substantial interest in proceeding. Person having interest in performance of legal duty of a person, functioning with affairs of federation or local authority would also come under Article 199. Whereas, aggrieved person would also include having legitimate interest in performance of public duty [4]. Court also held that in each resident effected by the construction of high floor buildings in area which do not comply to planning permission would come under the definition of Aggrieved party. So the petitioner who come to court under writ petition of Article 199, must have a right in performance of legal duties. If he come to court without homework, would add nothing new for benefit of society.
[1] [PLD 1978 SC 151],
[1] [1994 CLC 2318],
However, in exceptional circumstances courts have powers to accept writ petition of persons claiming on behalf of aggrieved party. As in case of Begum Nusrat Bhutto v/s Chief of Army staff, where petition was brought by petitioner in her capacity of wife of one of detenu and as Acting Chairman of Party. Petitioner though not alleging any contravention of her own Fundamental Rights yet in circumstances, held, an aggrieved person within meaning of Article 199.
The question regarding locus standi of parties was raised regarding, that whether the visitors of Karachi beach view park were able to file constitutional petition under Article 199 against the construction of high-rise building on plot left out by society. It was held [5] that although plot was not carved out for commercial use for raising a high-rise building, but it was intended and could be used for a restaurant as an attraction for the visitors to the Park. Where most of the appellants reside in close proximity of the Park, hence it cannot be argued that they don’t have locus standi to file a constitutional petition for such matter.
Mala-fide Acts/Judgments
Jurisdiction of civil courts can never be taken away for mala fide act, such acts/judgments can always be pronounced illegal and void [6]. In case of Abdul Rauf v Abdul Hamid Khan, it was held that an act done mala fide is an act without jurisdiction. No legislature when it grants power to take action or pass an order would contemplate mala fide exercise.
Petition against two holidays declared by government, was rejected under Article 199. as per Ch. Mushtaq Ahmad Khan, J [7].
- That the policy matters and the political issues could only be resolved on a political platform by the executive and the legislature and not by the judiciary.
- If aggrieved person is effected on policy matter, then proper remedy would be to approach government through public.
[1] 1999 SCMR 2883
[1] PLD 1965 SC 671
[1] 1995 CLC 1687 - Presumption would be imposed on acts/decision taken by government to be in public interest, unless contrary is proved.
- Although courts are entitled to strike down acts against public interest but they may not interfere in policy making.
On basis of these grounds court held that issue of loss to the economy and Banking business raised by the petitioner is merely on the basis of the opinion of the petitioner which does not represent public at large.
Habeas Corpus
Constitutional petition was filed under Article 199, to deal with the dispute between mother and father over custody of a minor. High Court, in habeas corpus proceedings, with powers to cause production and release of detained person from illegal and improper detention by Police or private person was considered. But it was held [8] that in case of mother and father seeking custody of child, the alternate remedy under Guardians and Wards Act, 1890 was available. Hence petition was dismissed.
Wherever a specific provision of law stood enacted for the purpose of relief then constitutional jurisdiction of high court could not be invoked under provision of Art.199. Constitutional provision for recovery of minors was converted into application u/s 491 CrPC.
But petition could be accepted where the minor has been illegally removed from the lawful custody of another person. In such circumstance, it has been held that [9] the availability of another remedy is to a bar for petition of Article 199, hence application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody would not be refused, where the minor is illegally detained by another party.
Section 199(1)(c) fundamental rights comes within the scope of S.491, Cr.P.C. High Court’s power to enforce fundamental rights, was much broader and much more far reaching than the concepts. of writs of Certiorari, Mandamus, Prohibition, Quo Warranto, in order to enforce fundamental rights. Also in another case it was held [10] that right of life not only include one’s life but also life, liberty and happiness of one’s children. So if a mother was denied the right of the company of her child then it would amount violation of mother’s fundamental right to life, and would come under definition of Article 199 for constitution respectively.
[1] 2011 PCrLJ 594
[1] 2011 PCrLJ 594
Article 212
Scope of Article 212 has extended to such that [11] all civil courts including High Court have no jurisdiction in matters relating to terms and conditions of civil servant. Where matters of appointment and termination would also come under this article. Civil servant is defined in S2(1)b as the person involved in services of Pakistan [12]. However, employees of industrial and commercial establishment owned by Government or private body is not under definition of “service of Pakistan” [13].
Where matters relating to fitness of civil servant is only to be determined by Departmental authority which is not answerable before High court or any civil court in exercise of its constitutional jurisdiction under Article 199. So Government may appoint or select persons suitable for job under their prerogative right [14]. Although seniority doesn’t fall in definition of terms and conditions [15], but few exceptions has been created in this regard to deal with constitutional petitions under Article 199. Hence the matters related to employee’s transfer, re-employment, promotion, wages would come under the definition of “Terms and Conditions” of employment contract, which would raise a bar in filing constitutional petition under Article 199.
Despite the bar contained in Article 212, High Court may give directions to public departments to act in accordance with the law, where the question is not of terms and conditions of civil servant but the induction in service, which do not fall within category of Article 212 [16]. However, in cases of discrimination in wages, High court would have authority under exceptional circumstances. Although equal pay is not granted by fundamental rights, but High court using its jurisdiction directed the authorities to issue order for equal payment in case where same post and duties were granted to official with different wage [17]. Although high court would not have jurisdiction to decide the matter due to a bar contained in Article 212 [18], and only lower courts have authority to provide proper relief.
[1] 2010 PLD 119
[1] PLD 1994 S.C 219
[1] 2002 PLC 57
[1] [2000 PLC (CS) 947]
[1] [2001 PLC (CS) 949]
[1] [1981 SCMR 554]
[1] [2002 SC 382]
Despite the fact, plaintiff may come to court not for proper relief, but just to provide mere information to court regarding misconduct in terms and conditions of civil servant, under Article 199, in this way a bar would not be triggered [19]. In order to ensure speedy trial in cases related to serious offences which are also against public molarity, Federal Government has an authority to introduce special court under Article 212B. Such courts and tribunals would deal with trial of heinous offences. However, it would only be effective for period of 3 years from date of enactment. Such courts would have limitation to decide the case within 30 days. Moreover, the bar against the constitutional petition under Article 199 in high court would also apply under Article 212B (section 8) with relation to Special courts.
Whereas, the authority of special courts under Anti-Terrorism Act was challenged as contrary to constitution Article 14. Where court held that state has to ensure “inexpensive” and “expeditious justice”. So the speedy trail of criminal and civil cases would not be against the goals of constitution [20]. Hence no objection can be made against the introduction of subordinate courts under Article 212A and Article 212B.
It was further held that, a special courts are validly constituted and they would have to act under constitution and act providing them authority to provide relief. Such courts are subordinate to the High Court, hence they have to act under its supervision and control under the hierarchy of courts i.e High Court.
[1] [2004 PLC (C.S) 586]
[1] [2004 PLC 521]
[1] [2004 PLC 828]
[1] [P L D 1998 SC 1445]
