SC detailed judgment: Judicial officers performing executive functions against separation of powers: SC

ISLAMABAD: The Supreme Court has held Citizens Committee will no more be headed by a Civil Judge notified by the District Judge concerned, and it will no more work under the supervision of District and Sessions Judge.

A three-member bench of the apex court headed by Chief Justice Umer Ata Bandial and comprising Justice Syed Mansoor Ali Shah and Justice Ayesha A Malik issued detailed judgment in the petition of Sindh government. The Sindh government had challenged the interim orders of Sindh High Court Bench at Sukkur and Circuit Court Larkana regarding relief work carried out by the petitioners in the flood-affected areas of Sindh, mainly Khairpur, Ghotki and Naushahro Feroze.

The 20-page judgment authored by Justice Ayesha A Malik held the role assigned to the judicial officers of overseeing the work of executive by heading the citizens committees essentially means that the judicial officers are performing executive functions which is against the principle of separation of powers.

The court held the Constitution of Pakistan does not contemplate assumption of functions by one organ that essentially belongs to another. Moreover, planning and strategy, coordination, monitoring and implementation are the functions of the executive and is best left for them to fulfill their duty and obligations.

The impugned orders are modified to the extent that the citizens committee shall no more work under the supervision of the District and Sessions Judge, the court held. The court clarified the citizens committee itself shall not engage in directing or controlling the relief work being undertaken, but shall participate in the process put in place by DDMA to make it more effective and inclusive.

The court directed the PDMA and DDMA to file bi-weekly report before the high court on the work and progress of the relief work to ensure efficiency. Justice Syed Mansoor Ali Shah in his additional note agreed with the judgment, but stressed the dimension of climate change must also be highlighted in the backdrop of recent floods. The court noted the work of these committees is a full time job which will require the judicial officers to spend time on these committees, which in turn take them away from their judicial work that is also not practical nor expedient.

The court noted petitioners have admitted that there is difficulty not only on account of accessibility but also on account of resources including human resources to deal with the unprecedented floods. In this background, we find that the formation of the citizens committees by the High Court, in principle, was to facilitate relief efforts in different areas within the province of Sindh. However, the inclusion of members of the District Judiciary was not required given that there is an entire legal framework under the Act to ensure relief work right down to the district level, says the judgment. As this is the policy-making body, the inclusion of members of civil society on this commission is imperative.

Additional Note of Justice Syed Mansoor Ali Shah Justice Syed Mansoor Ali Shah in his additional note agreed with the judgment but stressed that the dimension of climate change must also be highlighted in the backdrop of the recent floods.

Justice Mansoor Ali Shah held that the primary responsibility falls on the shoulders of the Ministry of Climate Change as well as the National Disaster Management Authority (NDMA) to propose a national adaptation plan to avert the horrific devastation caused by floods this year and also to safeguard and protect the fundamental rights of the people from the wrath of climate change.

It is also expected that existing policies or mechanisms catering to food insecurity etc. are mobilised as soon as possible, and if no such policies or mechanisms exist, the respective State functionaries should take urgent action to formulate such policies and create such mechanisms to prevent further exacerbation of the losses and damage already suffered due to the floods and for sustainable rehabilitation.

The existing climate change framework of Pakistan indicates the Ministry of Climate Change has has established the Pakistan Climate Change Council and the Pakistan Climate Change Authority. The latter has been empowered to formulate adaptation and mitigation policies, plans etc., including National Adaptation Plan, which the former shall approve and monitor. However, it seems that no substantial policies or plans have been formulated or implemented under the Climate Change Act.

It is apparent that the measures in place are insufficient to cater to rapidly changing climate and its dire effects. Therefore, there is a need for a coordinated joint effort in this regard.Having failed to learn from the floods in 2010, as has become apparent from the magnitude of the destruction caused by the recent floods, it is pivotal that effective steps are taken to prevent such catastrophes in the future”, Justice Mansoor Ali Shah observed.The judge expressed the hope federal government will act with speed in this regard because in the words of Greta Thunberg, “Our house is on fire”.