In November 2014, the Honourable Lahore High Court’s incumbent Chief Justice, Mr Justice Syed Mansoor Ali Shah, gave a landmark judgement in which directions were issued to the chairperson youth loan scheme Maryam Nawaz to leave the honorary post.Eventually the lady had to resign. A few months ago, the judgement regarding this case has been recently reported/published in the Pakistan Labour case law journal: PLC (CS)2016 Lahore, page 269.
Before the Lahore High Court, in public interest, a petition was filed by a social activist Mr Muhammad Zubair Khan Niazi in which I appeared as a counsel and argued at length by relying on the dictum laid down in the superior court’s judgement, PLD(Pakistan Law Digest) 2013 SC 195 — famously known as ‘The Anita Turab case’ -in which it was decided by the Honourable Supreme Court of Pakistan that every appointment to a public office shall be made on the basis of the principles of fairness, transparency and merit.
The Court had held that propriety demands, under such circumstances, for her to leave the office forthwith; because appointment to a public office cannot take place on the basis that one is related to the Prime Minister. This case is a reminder to the government that affairs of the state, particularly with respect to appointments, have to be conducted in a transparent manner while giving due consideration to good governance
During the course of arguments, an issue emerged that whether an honorary post falls within the ambit of a public office or not. The Honourable Lahore High Court relied on another Supreme Court judgement that remuneration is not the decisive factor in determining whether the post is a public office or not. It is the exercise of powers — mainly the appointing and dismissal authority, if being exercised by the person — and its control over the affairs of statutory body that determines the status of a person to hold the public office.
When the Honourable Court perused the notification of Maryam Nawaz’s appointment as Chairperson Youth Loan Scheme, it took cognisance of the fact that the lady was not only managing the affairs, but also controlling the entire institution dealing with youth loan scheme affairs.Therefore, the Honourable Court reached a conclusion that the post of Chairperson Youth Loan Scheme is a public office, since the lady was controlling and managing all the affairs of the Prime Minister’s Youth Programme.
Henceforth, the appointment shall take place in a transparent and fair manner, by considering the educational ualifications and professional experience of a person before he or she gets appointed, the Court ordered.The Court inquired about the qualifications of the lady and in response — appearing on behalf of the Federation of Pakistan — the learned Additional Attorney General took a stance that Miss Maryam Nawaz had done Masters in English Literature and had completed her PhD in political science from the University of the Punjab in 2012.
The learned Additional Attorney General, accompanied by the standing counsel, produced documents from the Wikipedia online encyclopaedic website to prove the credentials of Maryam Nawaz. This was the turning point;at this juncture,the Court was shocked to observe — from the website document — how it was possible that a person who has done Masters in English Literature had also completed her PhD thesis in political science.This certainly does not appeal to a rational and prudent mind.
The Court, in utter dismay, directed the learned Additional Attorney General to produce the degree transcripts of Maryam Nawaz on the next date of hearing.When the learned Additional Attorney General could not produce the transcripts/degree record of Maryam Nawaz on the subsequent hearing, the Court concluded that the lady does not have the requisite qualifications and hence does not qualify to hold the office.
Appearing on behalf of the petitioner, I further elaborated that although appointments to the public office is a prerogative of the executive, the discretionary powers still cannot be exercised in a whimsical and arbitrary manner; as mentioned in the landmark judgement of Tariq Aziz ud Din versus Federation of Pakistan, reported as 2010 SCMR(Supreme Court Monthly Review), page 1301.
The appointment of Maryam Nawaz as Chairperson Youth Loan Scheme was challenged under Article 199 of constitution of Pakistan in a writ of quo warranto, where the proof of locus standi is not required as per decided in PLD(Pakistan Law Digest) 2013Lahore, page 343. The scope of judicial review in a writ of quo warranto has increased over a period of time, and played a pivotal role to keep checks and balances on the discretionary powers of the executive in terms of appointments to public office.During the proceedings, it was submitted by the Youth Loan Scheme officials appearing on behalf of the government that the entire Scheme comprises of 10 billion rupees,which has been allocated out of taxpayer money.
The Court held that propriety demands, under such circumstances, that the lady must leave the office because appointment to such public office cannot take place on the basis that she is the daughter of Prime Minister. The court held that a public office holder holds public trust and owes fiduciary duties towards the public; in this case, it does not mean in any way that, the appointee,by virtue of being the daughter of Prime Minister, holds the public trust and therefore starts controlling the taxpayer’s money(Youth Loan Fund), which is against the rule of law.
This case is a reminder to the government that affairs of the state, particularly with respect to appointments, have to be conducted in a transparent manner with open-ended policies keeping into consideration the democratic norms and good governance principles.
It is well said that governments are for the people, by the people and of the people; but when the impugned appointment of Maryam Nawaz as Chairperson Youth Loan Scheme was made, an impression was given to the public at large that government is for the family, by the family and of the family: the Sharif family.Ultimately, with the intervention of the court’s exercise of judicial review powers and acceptance of the writ petition in public interest,the principle which prevails in the end is:‘discretion is the better part of valor.’
The judgement is also a lesson for Ms Maryam Nawaz, who has become recently active in politics -again by virtue of being daughter of ex-prime minister — that she cannot claim any position or title as a matter of birthright.Although the ruling party has won by-election in NA-120,Ms Maryam Nawaz Sharif has lost all credibility amongst the educated class: especially after the judgement of Supreme Court in the Panama Papers case,which has directed the National Accountability Bureau to file references against her and her family for owning assets disproportionate to their known sources of income.Instead of showing her readiness to face accountability proceedings before NAB, she is presently giving rabblerousing speeches to the public: to incite the common man against the judiciary.Such gimmicks will certainly not work for the lady in the long run!
The writer is a practicing human rights lawyer and appeared as a counsel on behalf of the petitioner in this case; the judgement has recently been reported as “PLC (CS)2016 Lahore 269: Muhammad Zubair Khan Niazi versus Maryam Nawaz etc.”
Published in Daily Times, September 20th 2017.