(Constitutional Jurisdiction)
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Syed Hassan Azhar Rizvi
Mr. Justice Sadiq Hussain Bhatti.
1. Const. Petition No. D-4430 of 2014
High Court Bar Association, Hyderabad ………….Petitioner
Versus
Federation of Pakistan and others ………………. Respondents
2. Const. Petition No. D-4629 of 2014
High Court Bar Association, Sukkur ………….Petitioner
Versus
Federation of Pakistan and others ………………. Respondents
Date of hearing : 15.07.2015
Date of judgment : 03.08.2015
M/s Zamir Hussain Ghumro along with Faizan Hussain & Malik Naeem Iqbal, advocates for the petitioner in C.P.No.D-4629/2014.
M/s. Muharram G. Baloch, Z.K. Jatoi, Ch. Waseem Akhtar along with Mallag Dashti, advocates for the petitioner in C.P.No.D-4430/2014.
Mr. Salman Talibuddin, Additional Attorney General of Pakistan.
Mr. Saifullah, AAG along with Ms. Nasreen Sehto, State Counsel.
-----------------------
Aqeel Ahmed Abbasi, J: Since common grievance has been expressed in the above petitions filed by High Court Bar Association Sukkur and High Court Bar Association Hyderabad through its Presidents, whereby, petitioners have brought in dispute the decision of the Judicial Commission of Pakistan in respect of two learned Additional Judges of this Court, whose names have not been recommended by the Commission for their confirmation as permanent judges of this Court, therefore, by consent of the learned counsel for the petitioners, the above petitions are being disposed of through this common judgment at Katcha Peshi stage.
2. In both the above petitions filed by High Court Bar Associations of Sukkur and Hyderabad, following identical relief has been sought:-
a) To call for record of Judicial Commission of Pakistan and Parliamentary Committee including assessment/evaluation of sub-committee of Judicial Commission comprising of Single Judge and the Honourable Chief Justice of this Court.
b) To confirm the Honourable Additional Judges of this Court namely Mr. Justice Farooq Ali Channa and Mr. Justice Riazat Ali Sahar.
OR
To direct that the case of Mr. Justice Farooq Ali Channa and Mr.Justice Riazat Ali Sahar be considered once again by Judicial Commission of Pakistan for confirmation and extend their tenure till the case is reconsidered.
c) To declare that subsequent Notification withdrawing the earlier in respect of one year’s extension to Mr. Justice Farooq Ali Channa and Mr. Justice Riazat Ali Sahar, issued by the Law Secretary, was illegal and unlawful, without jurisdiction, null, void and ab initio.
d) To direct the respondents to enforce earlier Notification dated 26.06.2014 whereby Mr. Justice Farooq Ali Channa and Mr.Justice Riazat Ali Sahar were given extension for a period of one year as Judges of this Honourable Court.
e) To direct the respondents to pay the salaries from 27.06.2014 onwards to them till adjudication of this petition.
f) To grant any other adequate relief, deemed fit, in the circumstances.
3. Aforesaid petitions were filed initially at Sukkur and Hyderabad respectively, however, at the request of the learned counsel for the petitioners, the Hon’ble Chief Justice constituted a Full Bench to decide instant petitions at principal seat at Karachi.
4. On 08.09.2014, when the matter was taken up for hearing before this Bench, the contention of the learned counsel for the petitioners was recorded in the following manner:-
“08.09.2014
M/s. Muharram G. Baloch, Z. K. Jatoi, Ch. Waseem Akhtar, Zaheeruddin Jatoi, Mallag Dashti, Zamir Hussain Watio, advocates for the petitioner.
--------------------
This Full Bench is constituted by the order of the Hon’ble Chief Justice on the representation made by the High Court Bar Association, Hyderabad, in C.P. No.D-1439/2014, whereby, the High Court Bar Association, Hyderabad has challenged the non-confirmation of two additional Judges of this Court, namely, Mr. Farooq Ali Channa and Mr.Riazat Ali Sahar, on the grounds that under similar circumstances a full bench was constituted in the case of Sindh High Court Bar Association, Sukkur v. Pakistan through Secretary, Parliamentary Affairs reported as PLD 2012 Sindh 531 and has decided the petition in favour of the incumbent Judges, whereas, per learned counsel, the Hon’ble Supreme Court has also confirmed the said decision of the full bench of this Court.
Learned counsel for the petitioners have expressed their grievances primarily on the withdrawal of Notification dated 26th June 2014 issued by the Law, Justice and Human Rights Division, Government of Pakistan, Islamabad on the Authority of President of Pakistan, whereby, the Worthy President was pleased to extend the tenure of the aforesaid two additional Judges of this Court, vide another Notification of even date issued by the Secretary, Ministry of Law, Justice and Human Rights, Government of Pakistan, Islamabad, without any authority or approval of the President.
Certain other legal grounds have also been raised in the instant petition, however, learned counsel for the petitioner submit that the same will be argued in detail on the next date, and in the meanwhile, comments may be called from the respondents.
Mr. Ghulam Shabbir Shar, advocate present in Court, submits that another similar Constitution Petition bearing No.C.P.No.D-2389/2014 (Sukkur) has also been directed by the Hon’ble Chief Justice to be taken up for hearing along with instant petition by this Full Bench, however, according to learned counsel, the same is under process in the office, hence, requests that the office may be directed to tag aforesaid petition along with instant petition which may be taken up alongwith instant petition on the next date of hearing. Order accordingly.
Let, in the first instance, notice be issued to the Attorney General of Pakistan as well as respondent No.2, who shall file comments before the next date.
To come up on 22.09.2014 at 11.00 a.m.”
5. However, on 22.09.2014, when the matter was taken up for hearing, learned counsel for the petitioners were directed to satisfy this Court as to whether the decision taken by the Judicial Commission of Pakistan, constituted in terms of Article 175A of the Constitution of Islamic Republic of Pakistan, 1973, is justiciable by this Court under Article 199 of the Constitution or not.
Thereafter, comments were filed on behalf of respondents No. 1 and 2 and the matter was taken up for hearing on number of dates, whereas, on 22.12.2014, learned counsel for the petitioners and the Additional Attorney General of Pakistan made further legal submissions, which are reproduced hereunder for the sake of brevity:
“While learned counsel for the petitioners were making their submissions, the learned Additional Attorney General of Pakistan has raised a preliminary legal objection as to maintainability of instant petitions and has drawn the attention of this Court to Para:10 of the decision of a Full Bench of this Court in the case of Sindh High Court Bar Association Sukkur vs. Federation of Pakistan reported as PLD 2012 Sindh 531, wherein, it has been held that the decision of the Commission is not justiciable. Learned Additional Attorney General of Pakistan has submitted that unless the petitioners can satisfy this Court as to maintainability of the instant petitions in view of the aforesaid decision of the Full Bench of this Court, the other arguments will be irrelevant and has submitted that the petitioners may be directed to first satisfy this Court on the above legal objection. Learned counsel for the petitioners in response, submitted that the decision of the Full Bench of this Court as referred by the learned Additional Attorney General of Pakistan is in violation of the dicta as laid down by the Hon’ble Supreme Court in the case of Munir Hussain Bhatti and others vs. Federation of Pakistan and another reported as PLD 2011 SC 407 and has referred to the relevant paras of the judgment i.e. Para 10 (Page: 438), Para 57 (Page: 471), Para 62 (Page: 473) and Para 65 (Page: 475) and submits that the Honourable Supreme Court in the aforesaid decision has categorically held that since the Judicial Commission and Parliamentary Committee are two limbs of one constitutional mechanism created by the newly added Article 175-A. Both of them owe their existence to Article 175-A and not to the provision relating to the legislature or the executive in the Constitution, therefore, per learned counsel, the decision made by the Judicial Commission is subject to judicial scrutiny and judicial review by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, learned counsel has requested for a short adjournment to further assist this Court on the above subject controversy. Since the learned Additional Attorney General of Pakistan has also left the Court to attend the D.B. of Hon’ble Chief Justice, we are adjourning this matter to 19.01.2015 at 08:30 a.m.”
6. Eventually, the matter was finally heard on 15.7.2015 when learned counsel for the petitioners, learned Additional Attorney General and the learned Additional Advocate General Sindh concluded their arguments and the matter was reserved for judgment.
7. The precise grievance, expressed through the above petitions filed on behalf of High Court Bar Association Hyderabad and High Court Bar Association Sukkur, through their respective Presidents, precisely relates to the validity of the decision taken by the Judicial Commission of Pakistan who, in its meeting, unanimously did not recommend the names of two learned Additional Judges of this Court for confirmation on the basis of report of one member Committee constituted by the Hon'ble Chief Justice of Pakistan in terms of Article 175A of the Constitution of Islamic Republic of Pakistan, 1973.
8. The relevant facts of the case are that the Judicial Commission of Pakistan, duly constituted under Article 175A of the Constitution, 1973, convened its meeting to consider the names of the Additional Judges of this Court for confirmation or otherwise, which was duly attended by majority of its members, including the Hon'ble Chief Justice of Pakistan. The Judicial Commission of Pakistan, after due deliberations, unanimously decided not to approve the names of two Additional Judges of this Court, namely, Farooq Ali Channa and Riazat Ali Sahar, JJ, for confirmation. However, the Parliamentary Committee, on its own, decided to extend the tenure of the aforesaid two Additional Judges of this Court for a further period of one year. Accordingly, Notification No.F.6(1)/2012-All dated 26 June, 2014 was issued by Secretary, Law, Justice and Human Rights Division, to this effect. The aforesaid Notification, however, was followed by another Notification of even date, whereby the earlier Notification, extending the tenure of the aforesaid Additional Judges of this Court, was withdrawn.
Learned counsel for the petitioners, while making their submissions in respect of aforesaid two Notifications have contended that the second Notification issued by the Ministry of Law, Justice and Human Rights, has not been issued with the concurrence of the President of Pakistan, hence the same is of no legal effect. It has been further contended that once a Notification was issued with the concurrence of the President of Pakistan regarding extension of tenures of the aforesaid two Additional Judges of this Court “for a period of one year from the date their present terms of office expire” no subsequent Notification for its withdrawal, without assigning any reasons, can otherwise be issued.
In addition to above submissions, learned counsel for petitioners have also disputed the constitution of one member committee for the purposes of scrutiny of the judgments authored by the above two Additional Judges of this Court as, according to the learned counsel for the petitioners, such committee cannot consist of only single member and should have been consisted of at least two or more members of the Judicial Commission of Pakistan. It has been urged that the decision of such single member of the Judicial Commission of Pakistan cannot be equated with the collective decision of all the members of Judicial Commission of Pakistan, hence, according to the learned counsel for the petitioners, the decision of the Judicial Commission of Pakistan in this regard is defective and cannot be implemented.
9. In response to the query of this Court as to whether the decision of the Judicial Commission of Pakistan relating to the scrutiny about the competence of the learned Additional Judges can be challenged through constitutional petition under Article 199 of the Constitution, 1973 before this Court, the learned counsel for the petitioners submitted that since in the case of Munir Hussain Bhatti and others v Federation of Pakistan and others (PLD 2011 SC 407), the Hon’ble Supreme Court has already held that the Judicial Commission of Pakistan and Parliamentary Committee are two limbs of the constitutional mechanism created by the newly added Article 175A, both of them owe their existence to Article 175A and not to the provisions relating to the legislature or the executive in the Constitution, therefore, according to the learned counsel for the petitioners, the decision of the Judicial Commission of Pakistan is also open to judicial scrutiny and judicial review by this Court under Article 199 of the Constitution, 1973.
On the contrary, learned Additional Attorney General and learned AAG, controverted such legal position and argued that in the case of Munir Hussain Bhatti (supra), the authority and the decision of the Parliamentary Committee was under dispute, and not the decision of the Judicial Commission of Pakistan, therefore, the aforesaid observations are relevant to the extent of the authority of the Parliamentary Committee and not relevant to the authority of Judicial Commission of Pakistan, which cannot be subjected to judicial scrutiny by this Court under Article 199 of the Constitution, 1973. In support of their contention, reliance was placed on the full bench decision of this court in the case of Sindh High Court Bar Association Sukkur through its President V. Pakistan through Secretary, Ministry of Law, Parliamentary Affairs, Government of Pakistan and another (PLD 2012 Sindh 531), wherein it has been held that the decision of Judicial Commission of Pakistan is not justiciable.
In response to a query of this Court as to the maintainability of these petitions, which have been filed without impleading the aforesaid two Additional Judges of this Court as party, unlike in the case of PLD 2012 Sindh 531, learned counsel for the petitioners have contended that since instant petitions are in the nature of public interest, whereas, the petitioners represent the two Bar Associations, which are aggrieved by the decision of the Judicial Commission of Pakistan, therefore, keeping in view the ratio of decision in the case of Munir Husain Bhatti (supra) instant petitions are maintainable even if the aforesaid two learned Additional Judges of this Court have not expressed their grievance directly by filing petitions in their own names.
10. Keeping in view hereinabove, submissions made by the learned counsel for the petitioners, the learned Additional Attorney General and the learned AAG, we would examine the provisions of Article 175A of the Constitution, 1973 in the light of the decision of the Hon’ble Supreme Court as well as the decision of the Full Bench of this Court, as referred to hereinabove, on the subject controversy as agitated through instant petitions.
It will be advantageous to reproduce Article 175A of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:
|
“Article 175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court. (1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.
(2) For appointment of Judges of the Supreme Court, the Commission shall consist of--- (i)
Chief Justice of Pakistan; Chairman (3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.
(4) The Commission may make rules regulating its procedure.
(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:- (i)
Chief Justice of the High Court to which the appointment is being made;
Member [Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission:
(6) For appointment of judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:- (i)
Chief Justice of the Islamabad High Court; Member Provided that for initial appointment of the [Chief Justice and the] Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission. Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply. (7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members: Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply. (8)
The Commission by majority of its total membership shall nominate to the
Parliamentary Committee one person, for each vacancy of a Judge in the
Supreme Court, a High Court or the Federal Shariat Court, as the case may be;
(i) four members from the Senate; and (ii) four members from the National Assembly. Provided that when the National Assembly is dissolved, the total membership of the parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis, apply. (10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition. (11)
Secretary, Senate shall act as the Secretary of the Committee. Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister. Provided further that if a nomination is not confirmed, the Commission shall send another nomination. (13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment. (14)
No action or decision taken by the Commission or a Committee shall be invalid
or called in question only on the ground of the existence of a vacancy
therein or of the absence of any member from any meeting thereof. (16)
The provisions of Article 68 shall not apply to the proceedings of the
Committee.
|
12. From perusal of the provision of Article 175A inserted by the Constitution (18th Amendment) Act, 2010, it may be seen that a self-contained mechanism has been provided for the appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court, whereas, the procedure for appointment of a Judge of Supreme Court and Judge of High Courts under original Articles 177 and 193 by the President of Pakistan after consultation with the Chief Justice of Pakistan and other consultees mentioned in Article 177 and Article 193 has been replaced by Article 177(1) and 193(1) as amended, which stipulates, inter alia, that Judges of the Supreme Court and the High Courts shall now be appointed by the President in accordance with Article 175A. The appointment of Judges of the Superior Courts has been brought within the domain of two constitutional bodies, namely, (1) Judicial Commission of Pakistan, comprising of Hon’ble Chief Justice of Pakistan as Chairman, four senior most Judges of the Hon’ble Supreme Court, former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges, for a period of two years, Federal Minister for Law and Justice, Attorney General of Pakistan and senior advocate of Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years, as members of the Commission, and (2) Parliamentary Committee, consisting of eight members, namely, four members from the Senate and four members from the National Assembly, whereas, out of eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. In terms of Sub-Article (8) of Article 175A, the Judicial Commission, by majority of its total members, shall nominate to the Parliamentary Committee, one person for each vacancy of a Judge for Supreme Court, a High Court or Federal Shariat Court as the case may be, whereas, in terms of Sub-Article (12) of Article 175A, the Parliamentary Committee on receipt of a nomination from the Judicial Commission, may confirm the nominee by majority of its total membership within fourteen days, failing which, the nomination shall be deem to have been confirmed, provided that the Committee, for reasons to be recorded may not confirm the nomination by 3/4th majority of its total membership within the said period, provided further that if a nomination is not confirmed by the Committee, it shall forward its decision with reasons so recorded to the Commission through the Prime Minister, provided further that if a nomination is not confirmed, the Judicial Commission shall sent another nomination. In terms of sub-Article (13) of Article 175A, the Parliamentary Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister, who shall forward the same to the President for appointment.
13. The Authority and the scope of jurisdiction of Judicial Commission of Pakistan and the Parliamentary Committee, constituted in terms of Article 175A of the Constitution, has been duly considered by the Hon’ble Supreme Court of Pakistan in the case of Munir Hussain Bhatti, advocate and others v. Federation of Pakistan and another (PLD 2011 SC 407), wherein, the Hon’ble Supreme Court while defining the jurisdiction and mandate of the Judicial Commission of Pakistan and the Parliamentary Committee, has held as under:-
“78. Firstly, it is relevant to note that the pro forma filled in by the Chief Justices of the two High Courts was at best a mechanism for tabling the particulars of a nominee which would enable the Commission (acting collectively) to have a meaningful and purposive discussion leading to an informed decision about recommending such nominee. As stated above, it is not necessary in the facts of the present petitions to embark on a scrutiny of the evaluations of the Hon’ble Chief Justices, made in respect of the six Hon’ble Judges whose nominations are in question, because after considering each nomination, the Commission (including the Chief Justices of the two High Courts) has unanimously made its recommendation that their tenures be renewed. The pre-deliberation evaluations of the Chief Justices of the Sindh High Court and the Lahore High Court do not now need to be considered because, as a matter of law, such evaluations disappeared when they merged into the final recommendation of the Commission made by a majority of its members and which, in the present case, has been made unanimously.
79. Secondly, this argument does not take into account the express wording of Article 175A which mandates a collective decision of the Judicial Commission and leaves no room for individual opinions of any one member of the Judicial Commission. It should be clear by now that the Constitution, in its amended form, recognizes only the collective decision of the Commission. The Constitution does not accord any primacy or special weightage to the opinion of any one member of the Judicial Commission. This is particularly so when such opinion is a purely individual opinion without benefit of the views of other members of the Judicial Commission. If anything, the amendments in the Constitution appear consciously and deliberately to have eliminated reliance on the views of a single person. Weightage, if any, which may attach to the opinions of the individual members of the Judicial Commission, is a matter for consideration by the Judicial Commission alone because the Constitution as amended, does not recognize individual opinions as to the competence, antecedents or over-all suitability of a nominee.
80. Thirdly, the argument does not take into account the larger ramifications of such a ruling for the future of our constitutional system, if it is held today that the Parliamentary Committee may give primacy to the opinion expressed by the High Court Chief Justice sitting in the Commission, tomorrow, there would be little justification left for objecting, if the Parliamentary Committee relied on the individual and varying opinions of any one of the thirteen members of the Judicial Commission. So, if things were left to proceed in that direction, even a 12-1 majority decision of the Judicial Commission could easily be negated by the Parliamentary Committee, relying on the one note of dissent that they find therein. This could effectively grant the Parliamentary Committee a veto in the appointment of judges – a situation contemplated neither by the Constitution nor palatable to any of the organs of the State, including the Parliament itself.
81. In the end, to facilitate understanding, we may recapitulate the key arguments, elaborated in this opinion, which bring us to reaffirm the short order pronounced earlier. First, we have held that these petitions are maintainable under Article 184(3) since they do involve issues of public importance and are related to the enforcement of fundamental rights. Next, we have laid out the principles which guide us in our task of constitutional interpretation. After this, by applying these principles while interpreting Article 175A, and by viewing it in the contest of its historical genesis and the foundational principles of our Constitution, we arrive at a correct and organic interpretation of said Article. This has allowed us to determine that the decisions of the Parliamentary Committee are subject to judicial review in this Court; and it has also helped us better appreciate the relative roles assigned by the Constitution, as amended, to the various institutions and functionaries involved in the process of appointment of judges. Finally, the facts of the present petitions have been scrutinized using the well-understood principles of judicial review. This scrutiny reveals that the impugned decisions of the Committee are based on an erroneous understanding of the law and the Constitution; since these decisions were taken without lawful authority, they are of no legal effect.”
14. Similarly, a full bench of this Court in the case of Sindh High Court Bar Association, Sukkur v. Pakistan (PLD 2012 Sindh 531) while examining the same provision of the Constitution and examining the validity of the decision taken by the Parliamentary Committee rejecting the decision of the Judicial Commission of Pakistan in respect of two Additional Judges of this Court, has held as under:-
“10. In our jurisprudence, it is now well settled:
(i) That the independence of the judiciary and the concept of separation of powers are the cardinal principles of our Constitutional scheme;
(ii) That the independence of judiciary is inextricably linked and connected with the process of appointments of the Judges of the Constitutional Courts;
(iii) That the evaluation of the caliber, competence, legal acumen, and the overall suitability of a nominee for appointment as a Judge of a Constitutional Court falls exclusively within the domain of the judicial consultees;
(iv) that the decision of the Commission is not justiciable;
(v) that the scope of the Committee’s function and competence is limited to consider the antecedents, to be examined on the basis of material obtained by the Committee/executive;
(vi) that the Committee can refuse to accept the nomination of the Commission only on the basis of antecedents, such as character, moral and/or financial integrity;
(vii) The Committee’s refusal to accept the nomination by the Commission should be based on very strong reasons pertaining to the criteria falling within the former’s domain.
(viii) that the reasons, above, are justifiable and are amenable to judicial scrutiny/review.
The above decision of the Full Bench was challenged by the Federation of Pakistan before the Hon'ble Supreme Court, and vide judgment reported as Federation of Pakistan v. Sindh Bar Association and another (PLD 2012 SC 1067), the Hon'ble Supreme Court upheld the above judgment of the Full Bench of this Court.
11. The concept/principle of independence of the judiciary in the context of 1973’s Constitution has been dealt with in the case of SHARAF FARIDI v. FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN (PLD 1989 Karachi 404) in the following words:
“Contemplated the trichotomy of power between the three organs of the State, namely the legislature, the executive, and the judiciary……. it was envisaged that the judiciary would be independent and separate from the other organs of the State…”
12. Elaborating on the above principle in AL-JEHAD TRUST’s case (supra), the Hon’ble Supreme Court observed that “the judiciary shall be independent”. In Zafar Ali Shah’s case (PLD 2000 SC 869) the Hon’ble Supreme Court recognized the above principle in the following words:
“Independence of the judiciary is a basic principle of the Constitutional governance in Pakistan.”
13. The Hon’ble Supreme Court reiterated the above principle in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61) as follows:
“…that the independence of the judiciary was a basic and a salient feature of the Constitution.”
14. The fact that the independence of the judiciary as enshrined by the Constitution, is mainly secured through the process of appointment, removal and security of Judges, has long been recognized by our Courts. The said principle has been reiterated in AL-JEHAD TRUST’s case as follows:
“…the independence of judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior judiciary.”
15. In this regard one may also refer to the MEHRAM ALI’s case (PLD 1998 SC 1445) where the Hon’ble Supreme Court held that the terms, conditions and security of tenure of Judges is also central to the independence of the judiciary.” Reaffirmation of the above principle is also found in the Chief Justice’s case in the following words:
“Security of office of judges and of its tenure was a sine qua non for the independence of judiciary.”
16. After having examined the above Constitutional provisions relating to the appointment of Judges of the superior Courts and the ratio of the judgments of the Hon’ble Supreme Court and High Court on the subject controversy, and keeping in view the facts and circumstances of the instant case, we can safely conclude as follows:
(i) In terms of rule 6 of the Judicial Commission of Pakistan Rules, 2010, the Hon'ble Chief Justice of Pakistan, being Chairman of the Commission, has the authority to constitute one-member committee to examine the judgments authored by nominee Additional Judges, however, the opinion of such committee is subject to further scrutiny by all the members of the Judicial Commission of Pakistan. Hence, once the other member of the Judicial Commission of Pakistan, after scrutiny, concur with the one-member committee, then the same does not remain the opinion of the one-member committee and becomes the final decision of the Judicial Commission of Pakistan.
(ii) That the Judicial Commission of Pakistan, constituted under Article 175A of the Constitution of Islamic Republic of Pakistan, 1973 is best suited to determine the calibre, competence, legal acumen and overall suitability of a person for appointment as a Judge of the Hon’ble Supreme Court, a High Court or Federal Shariat Court, as the case may be. Whereas, the decision taken by the Judicial Commission of Pakistan in this regard cannot be over turned by the Parliamentary Committee, which has the mandate to examine the suitability and to ascertain the antecedents of the judicial appointee(s).
(iii) The Parliamentary Committee has no authority to consider or approve the appointment, extension of tenure or confirmation of an Additional Judge of its own unless the name of such person is duly recommended by the Judicial Commission of Pakistan for such purpose. Since the names of the above two learned Additional Judges were not approved for confirmation or extension by the Judicial Commission of Pakistan, therefore, the decision taken by the Parliamentary Committee in relation to above two Additional Judges, recommending extension of their tenure for one year to the President of Pakistan, was ab initio without jurisdiction hence of no legal effect.
(iv) Consequently, Notification No.F.6(1)/2012.All dated 26.4.2014, issued by the Secretary, Government of Pakistan, Law, Justice and Human Rights Division, giving effect to the decision of the Parliamentary Committee, extending the tenure of the above two learned Additional Judges for a period of one year, was also without lawful authority and hence of no legal effect. Thus, it was validly and properly withdrawn by the Notification of even number and date.
(v) The decision of the Judicial Commission of Pakistan, either unanimous or by majority of its members, relating to evaluation of calibre, competence, legal acumen and over all suitability of a nominee for appointment as a Judge of a Constitutional Court is not justiciable by any forum, including this Court by invoking Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
17. In view of hereinabove facts and circumstances of this case, we are of the opinion that the above petitions, filed by High Court Bar Association, Hyderabad and High Court Bar Association, Sukkur, are misconceived in fact and law, the same are hereby dismissed alongwith listed applications.
Judge
Judge
Judge
Karachi, the ____ August, 2015.