Pakistan

SC sets aside IHC ruling of nullifying ban on motorcycles on motorways


The Supreme Court has held that the superior courts should not adopt such an interpretation that renders a statute or any of its provisions inoperative or unworkable, stressing that the principle of equality or egalitarianism did not mean that every law must have a universal application to all persons.

The apex court set aside an Islamabad High Court (IHC) ruling that had nullified the National Highways and Motorway Police (NH&MP) ban on motorcycles on the motorways. A three-judge bench, led by Justice Sardar Tariq Masood, had heard the petition filed by Additional Attorney General Amir Rehman.

In its nine-page judgement, authored by Justice Muhammad Ali Mazhar, the bench noted that it was a well acknowledged and long-standing precept that persons might be classified into groups and such groups might be treated differently if there was a reasonable basis for such difference.

“No doubt, the court can strike down a law if it is found to be unconstitutional, but it cannot introduce any inexactitude or absurdity or restrict or constrict a provision by espousing or presuming an anomalous elucidation in a peculiar manner to make it meaningless or inconsequential in the reading down concept,” it said.

The apex court judgement noted that it was a well acknowledged and long-standing precept that persons might be classified into groups and such groups then might be treated differently if there was a reasonable basis for such difference.

“Article 4 of the Constitution safeguards and guarantees the inalienable right of every citizen of Pakistan to enjoy the protection of law and to be treated in accordance with law wherever he may be, and of every other person for the time being within Pakistan,” the judgement said.

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“…No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do,” it continued.

The judgement mentioned that the principle of equality or egalitarianism did not mean that every law must have a universal application to all persons. In fact, it added, the fluctuating needs of dissimilar sets of persons necessitated different treatment.

It said that the touchstone of acceptable classification required the fulfilment of two basic ingredients. The first was that the classification must be founded on an “intelligible differentia” which might judiciously distinguish persons or things that were grouped together from others left out of the group.

The second was that the differentia must have a logical and reasonable linkage with the object sought to be achieved, the ruling added. “The expression ‘intelligible differentia’ connotes the departure which is capable of being understood and made sense of,” it added.

“A categorisation of groups of people is ruminated as being reasonable when the classification is based on intelligible differentia having a rational relationship with the objective of the act,” it said, adding that it was a court’s regimen to review legislative and executive actions to maintain and sustain the rule of law.

“Under the territory and province of Judicial review, the court reviews the lawfulness of a decision or action made by a public body. In fact, this is a process under which executive or legislative actions may be subject to review by the judiciary,” the judgement explained.

“The Court may invalidate laws, acts and governmental actions that are incompatible with a higher authority; more so, an executive decision may be invalidated for being unlawful and also maintains check and balance. Judicial review can be sought on the grounds that a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires.”

The bench noted that a decision could be challenged as unreasonable if no reasonable authority could ever have come to it; there was a failure to observe statutory procedures or natural justice; or it was in breach of the doctrine of legitimate expectation, either procedural or substantive.

“At the same time, clear distinction or line of demarcation is also required to be drawn by the Courts in the middle of judicial review vis-a-vis judicial overreach in order to avoid transgression of border line,” the court emphasised.

The court also referred its earlier ruling in which it shed some light on the distinction between judicial review, judicial activism and judicial overreach. It held that the judicial review was the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions were consistent with the Constitution.

“Actions judged inconsistent are declared unconstitutional and, therefore, null and void,” the judgement said. Judicial review, the judgement added, was the genus and judicial activism or judicial restraint were its subspecies.

It was further held that the judicial overreach was when the judiciary started interfering with the proper functioning of the legislative or executive organs of the government. “This is totally uncharacteristic of the role of the judiciary envisaged under the Constitution and is most undesirable in a constitutional democracy.”

The court also held that Judicial overreach was transgressive as it transformed the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy, thus encroaching on other branches of the government and disregarding the fine line of separation of powers.

“Such judicial leap in the dark is also known as “judicial adventurism” or “judicial imperialism,” the judgement said, stressing that a judge should remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution.

At present, the judgement noted, the issue related to the niceties and applicability of the Section 45 of the Ordinance 2000, wherein the government or any agency might prohibit or restrict the driving of any specified class of motor vehicles in a specified area or road in the interest of public safety or convenience.

“According to the scheme of the Ordinance 2000, the prime factor and consideration is the safety of the public at large and the ban imposed on motorcycles is within the precincts and parameters of law which can neither be construed as the violation of any fundamental right to life or liberty, nor this section was challenged before the High Court as being ultra vires the Constitution or the Ordinance 2000,” the court declared.

“We do not subscribe to the views of the learned High Court that the terms regulate wherever used in the Ordinance 2000 can only be considered for the purpose of supervision, superintendence and administration and no restrictions can be imposed under Section 45 of the Ordinance 2000, it said.

On the contrary, the court said, the true purpose and exercise of powers conferred under Section 45 also encompassed the responsibility of supervision and administration, including the power to restrict the entry of motorcyclists on motorways for maintaining safety and protection.


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