Updated: Tuesday May 09, 2017/AthThulatha Sha'ban 13, 1438/Mangalavara Vaisakha 19, 1939, at 05:37:59 AM

 

P L D 1996 Supreme Court 324

 

Present: Sajjad Ali Shah, C.J., Ajmal Mian, Fazal Ilahi Khan Manzoor Hussain Sial and Mir Hazar Khan Khoso, JJ

 

AL-JEHAD TRUST through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others-Petitioners

 

versus

 

FEDERATION OF PAKISTAN and others-Respondents

 

Constitutional Petition No.29 and Civil Appeal No.805 of 1995, decided on 24th March, 1996.

 

. (On appeal from the judgment dated 491994 of the Lahore Nigh Court, Lahore in Writ Petition No.875 of 1994).

 

Per Sajjad Ali Shah, C.J.; Ajmal Mian, Fazal Ilahi Khan and Manzoor Hussain Sial, JJ.‑‑

 

(a) Constitution of Pakistan (1973).

 

Arts. 177 & 193 ‑‑‑ Appointment of Supreme Court and High Court Judges‑‑ Appointment of a Judge has to be transparent so that the litigant public and people at large have faith in the independence of Judiciary ‑‑‑ Appointment of a Judge and the mode and manner in which he is appointed has close nexus with the independence of Judiciary and cannot be separated from each other ‑‑‑ Words “after consultation” employed in Arts. 177 & 193 of the Constitution of Pakistan connote that the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play and involving participatory consultative process between the consultees and also with the executive ‑‑‑ Constitutional conventions can be pressed into service while construing a provision of the Constitution ‑‑‑ Acting Chief Justice, however, is not a consultee as envisaged by Arts. 177 & 193 of the Constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in cases where the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness ‑‑‑ Opinion of the Chief Justice of Pakistan and the Chief Justice of High Court as to the fitness and suitability of a candidate for judgeship is ‘ entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive ‑‑‑ Consultation for the appointment/ confirmation of a Judge of a Superior Court by the President/Executive with the consultees mentioned in Arts. 177 and 193 of the Constitution being mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted herein, would be violative of the Constitution and, therefore, would be invalid ‑‑‑ If the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, that will not be a proper exercise of power under the relevant Article of the Constitution ‑‑‑ Supreme Court, therefore, directed that upon the appointment of the permanent Chief Justices in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Courts’ Judges accordingly within one month from 20th March, 1996 (date of the order of Supreme Court) or within one month from the date of assumption of office by a permanent incumbent, whichever is later in time and to take action for regularising the appointments/confirmations of Judges recently appointed confirmed accordingly ‑‑‑ Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting ‘Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of Ad hoc/Acting Judges.

 

Per Sajjad Ali Shah, C.J.‑‑‑

 

In the Constitution of 1973, by which Pakistan is being governed, in the Chapter relating to the Judiciary and in the process of appointments, the word “consultation” is used.

 

The meaning of the word’ consultation” is very pivotal in nature because the independence of the Judiciary and the appointments of the Judges have close nexus with it or in other words deeprooted in it.

 

The word “consultation “ used in the Constitutional provisions relating to the Judiciary is to be interpreted in the light of the exalted position of the Judiciary as envisaged in Islam and also in the light of the several provisions in the Constitution which relate to the Judiciary guaranteeing its independence.

 

The Legislature has to legislate, the Executive has to execute laws and the Judiciary has to interpret the Constitution and laws. The success of the system of governance can be guaranteed and achieved only when these pillars of the State exercise their powers and authority within their limits without transgressing into the field of the others by acting in the spirit of harmony, cooperation and coordination.

 

Since no debate took place on the subject of “consultation” in the proceedings when Constitution Bill was being processed, Court has to construe it in the light of other factors, such as, Islamic provisions in the Constitution and separation of Judiciary which has already taken place. Appointment of a Judge and the mode and manner in which he is appointed has close nexus with the independence of the Judiciary and cannot be separated from each other. This is not right that as soon as a judge takes oath, there is a sudden transformation and he forgets his past connections and turns a new leaf of life. The process of appointment of a Judge must be made transparent so that the litigant public and people at large should have faith in the independence of Judiciary.

 

Having no assistance on the pivotal point as to what was the intention and scope in the minds of the Constitutionmakers when this word consultation” was used in Articles 177 and 193 of the Constitution, Judiciary should not shirk its duty of interpreting the Constitution to supply reasonably correct meaning to the word “consultation” in order to harmonise the provisions with other provisions and make the Constitution workable to resurrect the independence of the Judiciary as guaranteed in the Constitution and Islam.

 

The institution of Judiciary in Islam enjoys the highest respect.

 

Islam gives much importance and respect to consultation and binding force is given to the opinion of the Qazi or Judge and very wide powers are given to the Chief Justice including all appointments of subordinate Judges under him.

 

Word “consultation” has to be interpreted in the light of the Objectives Resolution, which is integral part of the Constitution providing in unequivocal terms that the independence of the Judiciary shall be fully secured.

 

The plain reading of Article 193, Constitution of Pakistan (1973) is that the appointment of a Judge of the High Court is to be made by the President “after consultation” with‑‑

 

(a) Chief Justice of Pakistan,

 

(b) Governor concerned; and

 

(c) Chief Justice of the High Court except where the appointment is that of the Chief Justice).

 

Here the intention is that the appointment is to be made by the President, after consultation” with three consultees, who are mentioned there. ‘In the Constitution proper scheme is provided for the appointment, hence it can be called Constitutional appointment. For such appointment Constitution requires “consultation”, which cannot be treated lightly as a mere formality. To say that the President has sole power of appointment and opinion of the consultees can be ignored particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be experts in the particular field of law in which the appointment is to be made, cannot be reasonable construction of the word “consultation”. It is understandable that the Governor can find out from intelligence sources about the candidate who is to be appointed as a Judge and his report or opinion is to be confined to that aspect of the matter. The President can refuse to appoint a candidate in whose favour Chief Justice of the High Court and Chief Justice of Pakistan have given their positive opinions, but Governor has given negative opinion for reasons of improper antecedents. The Chief Justice of the High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but must be given due weight. “Consultation” in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensusoriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive.

 

If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word “consultation” is used, which is different from ‘consent’, opinion of Chief Justice can be ignored. If the opinion of the Chief Justice is ignored, then the President/Executive should give masons which could be juxtaposed with reasons of the Chief Justices to find out as to which reasons are in public interest.

 

Wide and enlarged interpretation of the word “consultation” is made for the reasons, firstly, that the Constitutionmakers have not debated this word I consultation’ and fixed its parameters. Secondly, such meaning to the word has to be assigned which is consistent and commensurate with the exalted position of Judiciary as is envisaged in Islam. Thirdly, Court has to give positive interpretation to ‘consultation’ which promotes independence of judiciary. Executive may have the last word and may issue notification of appointment, but cannot give loose interpretation to the word ‘consultation’ to ignore or brush aside expert opinion of Chief Justice of the High Court and the Chief Justice of Pakistan. Fourthly, the President is administered oath by the Chief Justice of Pakistan as required under Article 42 of the Constitution and the Chief Justice of Pakistan administers oath to other Judges of the Supreme Court and Chief Justice of Province administers oath to Judges of his High Court as contemplated under Articles 178 and 194 respectively, which shows that both the Chief Justices are heads of their institutions and their opinion in their own field of expertise should not be treated lightly particularly when they are constitutional consultees and the appointments are also being made of the Judges within the constitutional scheme.

 

Appointment of an Acting Chief Justice is a stopgap arrangement and is supposed to last for a short time and he is not authorised to deal with the policy matters including making “recommendations” in the appointment of the Judges.

 

The meaning and scope of “consultation” laid down herein and the powers of Acting Chief Justices in connection therewith would affect only such appointments which have been made by the present Government and this exercise would not go beyond that. It is left open that the appointments made with the “recommendations” of the Acting Chief Justices in the High Courts can be reviewed and steps to be taken by the permanent Chief Justices to regularise them if this can be done on the basis of merit within thirty days from the date when the permanent Chief Justices are ‘ appointed in the High Courts and take oath. Regularisation shall take place as contemplated under Article 193 of the Constitution.

 

Per Ajmal Mian, J.‑‑

 

A perusal of clause (1) of Article 193 indicates that for appointment of a Chief Justice of a High Court, the President is required to consult:

 

(i) The Chief Justice of Pakistan;

 

(ii) Governor of the Province concerned.

 

Articles 177 and 193 envisage the appointment of the Supreme Court Judges by the President after consultation with the Chief Justice of Pakistan, whereas for the High Courts after consultation with the Chief Justice of Pakistan, with the Governor concerned and with the Chief Justice of the High Court concerned.

 

The object of providing consultation, inter alia, in Articles 177 and 193 of the Constitution of Pakistan (1973) for the appointment of Judges in the Supreme Court and in the High Courts was to accord constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court, which was obtaining prior to the independence of India and postindependence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior Judiciary which has been assigned very difficult and delicate task of acting as watch dogs for ensuring that all the functioneries of the State act within the limits delineated by the Constitution and also to eliminate political considerations. The power of appointment of Judges in the ‘superior Courts had direct nexus with the independence of Judiciary. Since the Chief Justice of the High Court concerned and the ‘Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, have been consistently accepted during prepartition days as well as postpartition period in India and Pakistan. The words “after consultation” referred to, inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensus-­oriented, leaving no room for complaint or arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for judgeship in the superior Courts, whereas the Governor of a Province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. No one of the above consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice of Pakistan, being Paterfamilias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely, his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to select best persons for the judgeship of a superior Court keeping in view the object enshrined in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2A thereof, and ordained by Islam to ensure independence of Judiciary.

 

The views of none of consultees can be rejected arbitrarily in a fanciful manner. The views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wished to disagree with their views, it has to record strong reasons which will be justiciable.  A person found to be unfit by the Chief Justice of the High Court concerned and the chief justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court cannot be appointed as it will not be a proper exercise of power to appoint under Articles 177 and 193 of the Constitution.

 

Consultative process is mandatory and without it no appointment/uunfirmation can be made, It must follow that in absence of consultation as contemplated and interpreted the appointment/confirmation of a Judge in the superior Court shall be invalid This view is in consonance with the wellestablished conventions, Islamic concept of ‘Urf’ and the proper exercise of power.

 

The independence of Judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary. The relevant constitutional provisions are to be construed in a manner which were ensure the independence of Judiciary. A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while ,interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court’s efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.

 

The above principles will have to be kept in view while construing the provisions of the Constitution relating to the appointmentstransfers of Judges of the superior Judiciary.

 

Courts, while construing a constitutional provision, can press into service an established constitutional convention in order to understand the import and the working of the same, if it is not contrary to the express provision of the Constitution.

 

The system of appointment of Judges obtaining in U.S.A. and U.K. has no direct bearing on the issue. The systems of appointment of Judges in the above two countries are different as compared to Pakistan. The relevant Articles in Constitution of Pakistan relating to appointments in Judiciary with minor variations have been lifted from the Indian Constitution, 1950, and, therefore, the facturn as to how they have been interpreted and acted upon in India is relevant.

 

The consultation referred to in the Verses from the Holy Qur’an and the Islamic books is different inasmuch as the same relates to the collective consultation from the people, whereas the present consultation is of an individual character. In this view of the matter, Court cannot press into service the principle of Ijma.

 

On the basis of various Islamic sources. the power to appoint, inter alia, Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than the merit is a great sin entailing severe punishment.

 

The office of the Chief Justice of Pakistan has been created by Article 176 of the Constitution. The above Article and the subsequent Articles do not confer any power on the Chief Justice to appoint other Judges. No Chief Justice has ever claimed any implied power to appoint Judges in the superior Judiciary. The role assigned by the Constitution to the Chief Justice is that, inter alia, he is to be consulted bv the President before any appointment of a Judge in the Supreme Court or in a High Court is made.

 

Act of appointment of a Chief Justice or a Judge in the superior Court  is an executive act. No doubt this power is vested in the Executive under the relevant Articles of the Constitution, but the question is, as to how this power is to be exercised. Conventions can be pressed into service while construing a provision of the Constitution and for channelising and regulating the exercise of power under the Constitution: whereas under the Islamic Jurisprudence, a convention. which is termed & Urf has a binding force on the basis of various Islamic sources, It has been a consistent practice which has acquired the status of convention during prepartition days of India as well as postpartition period that the recommendations of the Chief Justice of a High Court and the Chief Justice of the Supreme Court in India as well as in Pakistan have been consistently accepted and acted upon except in very rare cases, The practice of consultation of the Chief Justice of a High Court and the Indian Federal Court was obtaining even under the Indian High Courts. Act as well as under the Government of India Act 1915, though the appointment of Judges of superior Courts in India was a matter of pleasure vested in the Crown. The recommendations of the Chief Justices even in those day were accepted as a matter of course.

 

If it was to he assumed that the Executive has the discretion to appoint Judges in the superior Courts. it is a wellsettled proposition of law that the discretion is to be exercised fairly and justly and not arbitrarily or in a fanciful manner.

 

It is true that in Article to of the Constitution which relates, inter alia to the appointment of a Chief Justice in a High Court. it has not been provided that most of the senior judges shall be made as the Chief Justice. The reason seems to be obvious, namely, it is possible that the senior most judge, at the relevant time, may not be physically capable to take over the burden of the office or that he may not be willing to take upon himself the above responsibility. The Chief Justice of Pakistan, who is one of the consultees under Article 193 will be having expertise knowledge about the senior most Judge of a High Court. If the senior most Judge is bypassed for any of the above reasons, he cannot have any grievance but if he is superseded for extraneous considerations, the exercise of power under Article 193 of the Constitution will not be in accordance therewith and will be questionable.

 

Keeping in view the concepts of independence of Judiciary, separation of Judiciary as enshrined in the Constitution and the guidelines provided therein as to the time of filling in of the public offices in conjunction with the Islamic Jurisprudence, an Acting Chief Justice is not a consultee for the purpose of Articles 177 and 193 of the Constitution as the appointment of Acting Chief Justices is a stopgap arrangement for a short period not for more than 90 days. However, it is clarified that if a permanent incumbent has fallen sick seriously and he remains in the hospital or under treatment and is not in a position to perform his functions and because of that an Acting Chief Justice remains in office for more than 90 days, in such a case, the Acting Chief Justice may consult the permanent incumbent while acting as a consultee under the above Articles, but if it is not possible to consult the permanent incumbent, in that event, the Acting Chief Justice will be a consultee for the purpose of the above Articles because of the doctrine of necessity.

 

Per Manzoor Hussain Sial, J.‑‑

 

The principles and provisions set out in the Objectives Resolution now form substantive part of the Constitution, wherein it is categorically provided that independence of Judiciary shall be “fully secured” as also Article 227 of the Constitution mandates that all existing laws are required to be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. The Constitution contemplates trichotomy of power inter se the three pillars of the State, namely, Legislature, Executive and the Judiciary, each one of the organs of the State has to function within the limits provided in the Constitution. The constitutional provisions relating with the appointments and transfers of Judges of the superior Courts, therefore, need to be examined in the light of the Islamic concept of justice. Islam had always attached unparalleled importance to the concept of justice. The persons, who administered justice, had been men of deep insight, Godfearing, honest and men of integrity.

 

In the light of the Islamic background. where Judiciary had been highly respected and the verdict of the Qadis enjoyed great esteem, coupled with the role assigned to it in the framework of the Constitution, particularly after the introduction of Objectives Resolution a substantive constituent of the Constitution, it may be said that the Judiciary now occupies unique position and has to play a decisive role in ensuring that none of the functionaries of the Government act in violation of the provisions of the Constitution or the law. The nature of the role that the Judiciary has to play, demands that it should be independent. The independence of Judiciary is deeply connected with the constitutional process of the appointment and transfer of Judges of the superior Courts. It is, therefore, imperative that the constitutional provisions relating to Judiciary are interpreted in a manner, so as to secure the complete independence of Judiciary. ‘Me approach to interpret , the provisions should be progressive, dynamic and meeting the ever changing requirements of the society.

 

The words “after consultation” occurring in Articles 177 and 193. of the Constitution connote that the consultation should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint of arbitrariness or unfair play’ The opinion of the Chief Justice of Pakistan and the Chief Justice High Court regarding fitness and suitability of the candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the appointing authority, and if. the President/Executive appoints a candidate found to be unfit by the Chief Justice of Pakistan and Chief Justice of High Court concerned, it will not be a proper exercise of power under the relevant Articles of the Constitution.

 

The word “after consultation” mentioned in Articles 177 and 193 of the Constitution ‘envisage participatory consultative process ‘between consultees and the appointing authority. The Chief Justice of Pakistan, as also the Chief Justice of High Court concerned have the best expert knowledge about the suitability of a person to be appointed as Judge of the High Court. The other consultee, namely, the Governor of the Province may provide adequate information about character of the candidate. All the consultees contemplated in the abovementioned provisions of the Constitution have vital role to play in the matter. T he opinion of the Chief Justice of Pakistan, however, would deserve significant importance to select best persons for securing the independence of Judiciary. The opinion of the Chief Justice of High Court and the Chief Justice of Pakistan having direct knowledge about the suitability of the candidate can therefore be not ignored for any extraneous reason, and in case of disagreement, the appointing authority is required to record sound reasons which will be justiciable. It, therefore, follows that if a person is declared Unfit by the Chief Justice of the High Court, as also the Chief Justice of Pakistan, for appointment as Judge, he cannot be validly appointed, and if appointed it will not be a proper exercise of the jurisdiction vested in the appointing authority.

 

The perusal of Article 193 of the Constitution shows that the appointment of a Judge of High Court is made by the President after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court (except where the appointment is that of a Chief Justice). The President has to consult three persons when making appointment of a Judge. The appointment of a Judge is a constitutional appointment and a mode thereof is provided in the Constitution itself. The consultation required by the President from the consultees cannot be deemed to be a formality. Consultative process envisaged in the abovenoted provision is mandatory and valid appointment of a Judge or his confirmation cannot be made without resorting to consultative process. The Chief Justice of the High Court and the Chief Justice of Pakistan if give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that candidate cannot be appointed and in this way the opinion of the Chief Justice cannot be ignored and due weight is to be given to his opinion. The extended meaning given to the word ‘consultation’ is mainly for the reason that it secures the independence of Judiciary. The due deference is to be attached to the opinion of the Chief Justice of Pakistan and the Chief Justice of the High Court due to their exalted position as envisaged in Islam, so that the appointment of the Judges are made in a transparent manner on the basis of the merits alone.

 

Every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures direct or indirect, from any quarter or for any reason. The Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review. over all issues of a judicial nature. This object can only be achieved if Judges of integrity having sound knowledge in law are appointed on the basis of the expert opinion given by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. The word “consultation” used in the relevant Articles of the Constitution relating to Judiciary must be read in its context and being a mandatory requirement has to be effective meaningful, purposive and consensusoriented, to have best persons appointed as Judges of the superior Court and to secure the independence of Judiciary.

 

The mandatory constitutional requirement of consultation is not fulfilled by consulting the Acting Chief Justice. The concept of appointment of the Acting Chief Justice is that it is for a stopgap arrangement only for a short period when the office of the Chief Justice is vacant or the Chief Justice of High Court is absent. or is unable to perform the functions of his office due to any other reason. The President, in that case, shall appoint one of the other Judges of the High Court to act as Chief Justice or may request one of the Judges of the Supreme Court to act as Chief Justice.

 

The Acting Chief Justice, therefore, cannot be a proper consultee within the meaning of the relevant provisions of the Constitution for appointment of the Judges, as this militates. against the concept of providing for an independent Judiciary. Resultantly, the mandatory constitutional requirement of consultation is not fulfilled for appointment/confirmation of the Judges by consulting the Acting Chief Justice. The interpretation of Article 196 of the Constitution that Acting Chief Justice is not a consultee within the ambit of the relevant provision of the Constitution advances the spirit of the Constitution qua fully securing the independence of Judiciary and suppresses the mischief of having the appointments of lasting nature manoeuvred through him.

 

The Judge of the Supreme Court when appointed as Acting Chief Justice of High Court, is not a consultee within the meaning of Article 193 of the Constitution, his appointment as such in a lower position for indefinite long period is not appreciable.

 

(b) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 196, 177, 193, 180, 181, 182 & 197 ‑‑‑ Appointment of Judges of Supreme Court and High Courts ‑‑‑ Appointment of Acting Chief Justice, Acting Judges and ad hoc Judges ‑‑‑ Essentials ‑‑‑ Practice of appointing Acting Chief Justice for long period militates against the concept of independence of Judiciary ‑‑‑ Permanent vacancies occurring in the offices of Chief Justice and’ Judges of the Courts normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or any other reasons, should be filled in within 90 days on permanent basis ‑‑‑ Supreme Court, therefore, directed that permanent Chief Justice should be appointed in the High Courts where there is no permanent incumbent of the office of the Chief Justice and appropriate action be initiated for filling in permanent vacancies of Judges accordingly.

 

Per Sajjad Ali Shah, C.J.‑‑‑

 

The scheme of the appointments of the Judges as envisaged in the Constitution clearly indicates that they Are of permanent nature and if there are vacancies of temporary nature, then temporary appointments can also be made of Acting and Ad hoc Judges in the Supreme Court and Acting Chief Justices in the Supreme Court and the High Courts. If in the normal course, a permanent vacancy occurs, the same should be filled in within thirty days. But if such vacancy occurs before due date of retirement of a Judge on account of death or for any other reason, then the same should be, filled in within ninety days on permanent basis. Under Article 181 of the Constitution if there is a vacancy in the Supreme Court or a Judge of the Supreme Court is absent or unable to perform the functions of his office due to any cause, Acting Judge can be appointed from a High Court who is qualified for appointment in the Supreme Court. The explanation to this Article further provides that, a Judge of a High Court includes a person who has retired as a Judge of High Court, which means a retired Judge of a High Court can be appointed as Acting Judge before he attains the age of sixtyfive which is the age of superannuation in the Supreme Court. Under Article 192, for want of quorum of the Judges in the Supreme Court or for any other reason, if it becomes necessary to increase temporarily ­the number of Judges, the Chief Justice may in writing have appointment of Ad hoc Judges with the approval of the President. The following persons are eligible for such appointment: A retired Judge of the Supreme Court can be appointed if three years have not elapsed from the date of his retirement. A serving Judge of a High Court can also be appointed provided he is qualified to be the Judge of the Supreme Court. It appears from the perusal of Article 182 that even these appointments cater for temporary situation in which the number of the Judges is to be increased after the sanctioned strength of the Court is filled with the permanent appointments.

 

Acting Chief Justices are appointed for a short time and for that reason, in the relevant Articles, automatic arrangement is provided particularly in the appointment of the Acting Chief Justice of Pakistan, but no criterion is laid down in the provision of appointment of Acting Chief Justice of the High Court. In all fairness, the period for such acting appointment should not be more than ninety days during which Acting Chief Justice may perform functions of routine nature excluding “recommendations” in respect of appointment of Judges. Reasons being that firstly, Article 180, which provides for appointment of the Acting Chief Justice of Pakistan and Article 196, which provides for appointment of the Acting Chief Justice of a High Court, do not specifically provide that they can participate in the consultative scheme of the appointment of the Judges as envisaged in the Constitution. Secondly, Acting Chief Justices are supposed to be functioning for a short time and, therefore, it would not be fair to allow them to interfere with policymaking matters and appointments in the Judiciary which should ‘ be left for permanent incumbents. Thirdly, Article 209 of the Constitution contemplates the composition of the Supreme Judicial Council which is supposed to be comprised of (a) the Chief Justice of Pakistan, (b) two next senior most Judges of the Supreme Court, and (c) two most senior Chief Justices of the High Courts. In the explanation appointment of Acting Chief Justices is expressly excluded which clearly shows that the intention of the Constitutionmakers is that the Acting Chief Justices are allowed to function for a short time and more importance is to be attached to permanent Chief Justices and in the absence of permanent Chief Justices of the High Courts or, even for that matter, of the Supreme Court, the composition of the Supreme Judicial Council becomes imperfect and the Body as such becomes unfunctional.

 

Per Ajmal Mian, J.‑‑

 

The concept of an Acting Chief Justice was introduced during perpetration days as the Chief Justices used to be Englishmen and they used to go on leave to United Kingdom. The provisions of Acting Chief Justices were retained by India in its Constitution and by Pakistan in its four Constitutions which Pakistan had up to 1973. The object of Acting Chief Justice is to have a stopgap arrangement. It is a matter of common knowledge that most of the Acting Chief Justices do not take any decision relating to important policy matters of the Court concerned without consulting the permanent Chief Justice. If the permanent incumbent concerned is not accessible, the acting incumbent waits for his return. However, during Martial Law days, the practice of appointing Acting Chief Justices for long periods was adopted apparently with the intention to keep the Judiciary under the control of executive, which was not a commendable object. It militated against the concept of independence of Judiciary and separation of Judiciary from the executive. Under Article 203C(4), the Chief Justice of Federal Shariat Court is to be appointed for a period not exceeding three years, but he may be appointed for further term or terms as the President may determine.

 

It is the constitutional obligation of the President/Executive to ensure that the constitutional offices do not remain vacant and the vacancies are filled in without any delay. The provisions relating to appointments of Acting Chief Justice of Pakistan, Acting Judge of the Supreme Court and Acting Chief Justice of a. High Court are intended and designed to cater for emergency. They cannot be used as a substitute for making permanent appointments under Articles 177 and 193 of the Constitution.

 

A normal permanent vacancy should be filled in advance and, in any cast, not later than 30 days, whereas vacancy occurring on account of death or for any unforeseen cause, at the most, should be filled in within 90 days, which is generally considered to be a reasonable period.

 

This view, is in consonance with the provisions of the Constitution, keeping in view the concept of the independence of Judiciary as enshrined therein. It is also’ in accord with the speech of the QuaidiAzam, wherein he deprecated the practice of appointment of Additional Judges. It is further in line with the International Human Rights Commission’s report.

 

Per Manzoor Hussain Sial, J.‑‑

 

The permanent vacancies occurring in the offices of Chief Justice and Judges of the superior Courts are required to be filled in immediately not later than 30 days, but if the vacancy occurs before the due date on account of death or for any other reason, that should be filled in within 90 days on permanent basis. The constitutional ‘offices like that of Chief Justice or the Judges should not remain vacant for indefinite period, which may tend to impair the independence of Judiciary. Under Article 41(5) of the Constitution, the vacancy of an office of the President is filled in by election not later than 30 days from the occurrence of the vacancy. The date of retirement of the Judges is known to the Federal Government, since the day they are appointed. The process of appointment of their successors, therefore, can be commenced in advance, so ­that the successorsJudges are appointed immediately after the vacancies occur. In case of a vacancy arising suddenly on account of death or for any other reason the appointment of the successor Judge can be made within reasonable time, The period of 30 days to fill in the vacancy of constitutional office of a Judge has been laid down by adopting the criterion given in the provision of Article 41(5) of the Constitution which prescribes the period for filling in the vacancy of another constitutional office.

 

The, law is that where the Constitution provides a criterion for doing a thing in one provision then that criterion can be utilised for doing another thing of similar nature provided in the Constitution.

 

The period of 90 days to fill in the vacancy having occurred suddenly on account of death or for any other reason is considered a reasonable period because it is important to fill in the vacancies of the constitutional offices of Judges speedily and by doing so the concept of independence of Judiciary will be strengthened.

 

(c) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 181, 182 & 177 ‑‑‑ Appointment of acting/ad hoc Judges of Supreme Court ‑‑‑ Essentials ‑‑‑ Ad hoc Judge/Acting Judge cannot be appointed in the Supreme Court while permanent vacancies exist ‑‑‑ Supreme Court, therefore, directed that ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Art. 177, Constitution of Pakistan within the sanctioned strength or they should be sent back to their respective High Courts accordingly.

 

Per Ajmal Mian, J.‑‑

 

If the Chief Justice is of the view that it is not possible for want of quorum of Judges of Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, he may in writing:‑‑

 

(a) with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or

 

(b) with the . approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court, to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary.

 

Such a request can only be made if “it is necessary to increase temporarily the number of Judges of the Supreme Court”, for the two reasons given hereinabove. It implies that in presence of permanent vacancies in the Supreme Court, Article 182 of the Constitution cannot be invoked and an ad-hoc Judge cannot be appointed keeping in view the provision of Article 181 of the Constitution, under which an Acting Judge of the Supreme Court can be appointed against a permanent vacancy, Under Article 260 of the Constitution, which defines the various terms including “Judge”, the definition of the Judge given therein does not Include an ad hoc Judge, In, other words, he is not a Supreme Court Judge for the purpose of various Articles of the Constitution except for the purpose of Article 182 thereof, The practice of appointing ad hoc Judges against the permanent vacancies seems to be violative of the above provisions of the Constitution. This also militates against the independence of Judiciary as highlighted by QuaideAzarn Muhammad Ali Jinnah in his speech of 1931 before the Federal Structure SubCommittee,’ and the International Human Rights Commission at Geneva.

 

The upshot of the discussion is as under:‑‑

 

(i) That no ad, hoc Judge can be appointed under Article 182 while permanent vacancies exist;

 

(ii) that an ad hoc Judge is to act for a short period for attending the sittings of the Supreme Court; and

 

(iii) that he is not a Judge of the Supreme Court except for the purpose of the cases in which he sits and participates.

 

Per Manzoor Hussain Sial, J.‑‑

 

Article 181 of the Constitution relates to the appointment of Acting Judges. When office of a Judge ~i the Supreme Court is vacant or he is absent and is unable to perform the functions of his office due to any other reason the President may, in the manner provided in Clause (1) of Article 177, appoint a Judge of the High Court qualified for appointment as Judge of the Supreme Court to act temporarily as Judge of the Supreme Court. A retired Judge of the High Court is also eligible to be appointed as Judge of the Supreme Court and the appointment of Acting Judge of the Supreme Court shall continue until it is revoked by the President. This provision is not correctly applied or has been misused in as much as that since the appointment of the Acting Judge of the Supreme Court is revocable by the President at any time, the threat that his appointment can be revoked at any time, keeps on constantly hanging over him for the entire period he continues in office, which undermines his independence. The independence of the Judiciary is also thereby undermined, which, however, is necessary to be fully secured.

 

Article 182 of the Constitution relates to the appointment of ad hoc Judges in the Supreme Court. If at any time it is not possible for want of quorum of the Judges of the Supreme Court to hold or continue the sittings of the Court or for any other reason it is necessary to increase temporarily the number of the Judges of the Supreme Court, the Chief Justice of Pakistan may in writing, with the approval of the President request any person who has held the office of a Judge of the Supreme Court and three years have not elapsed since he ceased to hold that office or a Judge of the High Court qualified for appointment as Judge of the Supreme Court, with the approval of the President and with the consent of the Chief Justice of the High Court, may be asked to attend the sittings of the Supreme Court as ad hoc Judge for such period as may be necessary in the circumstances and while so sitting he shall have the same power and jurisdiction as Judge of the Supreme Court. The bare reading of the provision of this Article indicates that an ad hoc Judge in the Supreme Court cannot be appointed against existing permanent vacancy. Ad hoc Judge in the Supreme Court cannot be appointed against the permanent vacancy and is appointed only when it has become imperative to increase temporarily the existing strength of the Judges of the Supreme Court. The practice of appointing ad hoc Judges against permanent vacancies is therefore in contravention of the provision of Article 182 of the Constitution. Even otherwise the appointment of ad hoc Judges in the Supreme Court is for a specific purpose, namely, where at any time it is not possible for want of quorum of the Judges of the Supreme Court to hold or continue the sitting of the Court or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court. The language of the provision clearly indicates that an ad hoc Judge is appointed temporarily to cater for a particular or special situation and not as a substitute for filling a permanent vacancy.

 

(d) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 193 ‑‑‑ Appointment of Chief Justice of High Court ‑‑‑ Convention, of appointment of most Senior Judge ‑‑‑ Most Senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

 

Per Ajmal Mian. J.‑‑

 

Keeping in view the provisions of the Constitution as a whole and the wellestablished convention as to the appointment of the senior most Judge in the High Court as the Chief Justice which has been followed consistently in conjunction with the Islamic concept of ‘Urf’ the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

 

There seems to be wisdom in following the convention of seniority. If every Judge in a High Court aspires to become Chief Justice for the reason that he knows that seniority rule is not to be followed, it will adversely affect the independence of Judiciary. The junior most Judge may feel that by having good terms with the Government in power he can become the Chief Justice, This will destroy the institution and public confidence in it. The Chief Justices of the High Courts have the power to fix the roster i.e. to decide when a case is to be fixed and before whom it is to be fixed. In other words, they regulate the working of the Courts. It is, therefore, very important that the Chief Justices should not be pliable and they should act independently.

 

Per Manzoor Hussain Sial, J.‑‑

 

Article 193 of the Constitution empowers the President of Pakistan to appoint the Chief Justice of the High Court. Apparently there is no constitutional requirement to appoint senior most Judge as Chief Justice of the High Court whenever permanent vacancy occurs in the High Court, but to secure the independence of Judiciary from the Executive, it is necessary to advert to the constitutional convention which has developed by the continuous usage and practice over a long period of time,. The constitutional convention to appoint most Senior Judge of the High Court as a Chief Justice, had been consistently, followed in the High Courts since before partition of the sub­continent. The senior most Judge has an edge over rest of the Judges of the High Court on the basis of his seniority and entertains a legitimate expectancy to be considered for appointment as Chief Justice against permanent vacancy of the office of the Chief Justice. Apparently there is wisdom in following the constitutional convention of appointing most senior Judge of the High Court as permanent Chief Justice, otherwise a Junior most Judge in the High Court may aspire to become Chief Justice of the High Court by passing his seniors and to, achieve this object resort to undesirable conduct by going out of his way to oblige the Government in power. If he succeeds in securing his appointment as Chief Justice by superseding his seniors, by resorting to such measures he will endanger the independence of Judiciary and destroy the public confidence in the Judiciary. If a departure from following the established convention of appointing the senior most Judge is to be made, the appointing authority should record reasons for not appointing most senior Judge as Chief Justice of the High Court the complexion of the Institution is likely to be impaired by not so doing.

 

(e) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 193 & 197 ‑‑‑ Appointment of Judges of High Court‑‑‑Additional Judges ‑‑‑ Appointment of Additional Judges as permanent Judges or extension or period as Additional Judges ‑‑‑ Principles ‑‑‑ Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as concerned and the Chief Justice of Pakistan in ‘the absence of strong valid reason/reasons to be recorded by the President/Executive ... Supreme Court, therefore, directed that Additional Judges who were dropped shall be processed and considered for their permanent appointment by the permanent Chief Justice within one month from the date of assumption of office by him as such.

 

Per Sajjad All Shah, C,J,..

 

             Under Article 197 of the Constitution there is a provision for appointment of Additional Judges and it appears that there is no requirement that they can be appointed only after the sanctioned strength of the Judges of the High Court is filled in with the permanent appointees. From this it appears that even against the vacancies within the sanctioned strength a person can be appointed as Additional Judge of the High Court for a period to be specified and then can be made permanent as contemplated under Article 193. Such Judges have legitimate expectancy to be entitled and considered for appointment upon expiry of their period of appointment as Additional Judges if and when they are so recommended for the purpose by the Chief Justice of the High Court and the Chief Justice of Pakistan. If such appointments are refused to be made then there should be strong reasons recorded in writing. Extension to be made or not is not the sole discretion of the Federal Government unless such request is made by the Chief Justice of the High Court and the Chief Justice of Pakistan.

 

Per Ajmal Mian, J.‑‑

 

Under Article 197 of the Constitution, an Additional Judge can be appointed against a permanent vacancy or when a High Court Judge is absent or is unable to perform the functions of his office due to any other cause or for any reason it is necessary to increase the number of Judges of a High Court. In other words though the appointment of an Additional Judge is to be made for a period not exceeding two years but an Additional Judge can be appointed against a permanent vacancy.

 

The parity of reasoning for not appointing an Acting Chief Justice or an Acting Judge in the Supreme Court against permanent vacancies for a long period is equally applicable to an appointment of an Additional Judge in the High Court against a permanent vacancy. A practice/convention has developed in Pakistan that in the High Courts, Judges are first appointed as Additional Judges; either for a period of one year initially and then this period is extended to two years or they are initially appointed for a period of two years (during 1977 Martial Law this period was extended to three years) and their they are appointed as permanent Judges.

 

Article 197, inter alia, postulates the appointment of ‘an Additional Judge against a permanent vacancy. It is also wellestablished practice/convention that if an Additional Judge performs his functions during the period for which he was appointed to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he has always been appointed as a permanent Judge except in a rare case. In this view of the matter, a person who is appointed against a permanent vacancy as an Additional Judge in a High Court or if a permanent vacancy occurs during his period as an Additional Judge, he acquires a reasonable expectancy to be considered as a permanent Judge and in case he is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he is to be appointed as such in the absence of very strong reasons to be recorded by the President/Executive which may be justiciable. Additionally, the Executive, instead of accepting the recommendations of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for permanent appointments, without further consulting them, cannot extend the period instead of appointing them on permanent basis as recommended by the two Chief Justices.

 

Per Manzoor Hussain Sial, J.‑‑

 

Invariably, if Additional Judge of High Court performs his functions, during ~ the period for which he is appointed, to the satisfaction of the Chief Justice of the High Court as also the Chief Justice of Pakistan, he is appointed permanent Judge of the High Court. The Additional Judge, who is appointed against a permanent vacancy, or the vacancy having occurred during the period he was working as Additional Judge clearly acquires a reasonable expectancy to be considered for appointment as permanent Judge. In order to secure the independence of Judiciary if the Additional Judge is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, be is normally to be appointed as a permanent Judge in the absence of strong reasons to the contrary, which must be recorded by the appointing authority. It is in accord with the spirit of the Constitution that the period of his initial appointment as Additional Judge can only be extended on the recommendation of the Chief Justice of the High Court concerned or Chief Justice of Pakistan and not otherwise by the appointing authority. Legitimate expectancy of an Additional Judge, who had performed his functions to the satisfaction of the Chief Justice of the High Court concerned and Chief Justice of Pakistan for the period he was initially appointed, is only with regard to his being considered for permanent appointment.

 

(f) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 203C & 209 ‑‑‑ Appointment of Judges of High Court as Judges of Federal Shariat Court ‑‑‑ Principles‑‑‑Appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Art.203C of the Constitution without his consent is violative of Art.209, Constitution of Pakistan which guarantees the tenure of office‑‑‑Article 203C of the Constitution having been incorporated by the Chief Martial Law Administrator and Art. 209 of the Constitution having been enacted by the framers of the Constitution and also being beneficial and promoting independence of Judiciary, in case of conflict between the two, Art.209 of the Constitution shall prevail over Art.203C which detracts from dominant intent and spirit of the Constitution namely independence of Judiciary and such an appointment will be void‑‑­Supreme Court, therefore, directed that the cases of the appointees of the Federal Shariat Court be processed and be brought in line accordingly.

 

Per Sajjad Ali Shah, C.J.‑‑

 

Article 209 of the Constitution relates to the composition of the Supreme Judicial Council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability. to perform the duties of his office for the reason of physical or mental incapability or misconduct. SubArticle (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided by this Article. SubArticle (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and the High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High Court or of the Supreme Court. This provision is incorporated in the Constitution by the Constitutionmakers. Subsequently, Chapter 3A setting up the Federal Shariat Court was inserted in Pan VII of the Constitution vide P.O. No. 1 of 1980 providing in Article 203C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding two years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If a Judge or Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter 3A inserted in Part VII of the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions, in the final analysis, tantamounts to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is authorised to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be uncooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. The object is not to strike down provisions (4), (4B) and (5) of Article 203C as void being inconsistent with Article 209 but keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament.

 

Per Ajmal Mian, J.‑‑

 

The Federal Shariat Court is a new Court created by the Martial Law regime. It does not fit in the hierarchy of the Courts originally provided under the Constitution. It may be pointed out, that Article 203GG lays down that subject to Articles 203D and 203F, any decision of the Court in exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court, meaning thereby, that the Federal Shariat Court is not equated with a High Court. The appointment of a permanent sitting Chief Justice of a High Court or a sitting permanent Judge thereof is in fact a fresh appointment in a different Court. Factually, it cannot be treated as a transfer from one High Court to another High Court or a Court equivalent to it. The above fresh appointment in fact impliedly involves removal from office of a Chief Justice or a Judge of a High Court, as the case may be, for the period for which he is appointed in the Federal Shariat Court. Once a sitting Chief Justice of a High Court or a permanent Judge thereof is appointed in the Federal Shariat Court without his consent, he becomes susceptible under clause (413) of Article 203C to actions detrimental to his security of tenure which is guaranteed by the above Article 209(7) of the Constitution, inasmuch as the President may at any time, by an order in writing, modify the terms of appointment of such a Judge or he may assign to such Judge any other office, i.e. any office other than of a Judge or require him to perform such other functions as the President may deem fit, which may not necessarily be judicial functions.

 

A Chief Justice of the High Court, who may be senior to the Chief Justice of the Federal Shariat Court, after appointment in the Federal Shariat Court, becomes the junior most Judge. This also adversely affects the terms of office of a Judge.

 

If a permanent incumbent of the office of a Chief Justice of a High Court is appointed in the Federal Shariat Court with the object to bring an Acting Chief Justice, inter alia, for obtaining his recommendations for appointment of Judges as per desire of the Government in power, this will be violative of the spirit of the Constitution and will be mala fide in fact and in law, which will vitiate the entire exercise.

 

In the present case the allegation of the petitioner in the petition was that the Chief Justice of Lahore and Sindh High Courts were appointed as the Judges of the Federal Shariat Court, inter alia, for the above object, which allegation is denied by the Federation. Supreme Court wanted, inter alia, to examine the record of the above two Chief Justices in respect of their appointments in the Federal Shariat Court to ascertain the reasons; which prompted the Federation to take above actions. But this was resisted by it. In this view of the matter an adverse inference can be drawn.

 

Any appointment of a sitting Chief Justice of a High Court or a permanent Judge thereof without obtaining his consent, would be violative of Article 209 of the Constitution and, therefore, would be void.

 

Since there is a conflict between the above two Articles, efforts are to be made to resolve the same by reconciling it. The Constitution is to be read as a whole as an organic document. A close scrutiny of the various provisions of the Constitution highlights that it envisages that the independence of judiciary should be secured as provided by the founder fathers of the country by passing Objectives Resolution and by providing security of tenure. The Constitution also envisages separation of. Judiciary from the Executive. Keeping in view the various provisions of the Constitution, it is not possible to reconcile the above provisions of Article 203C and Article 209. In such a situation, the question arises, which of the Articles should prevail. One view can be that since Article 203C was incorporated subsequent to Article 209, the former should prevail. The other view can be that since Article 209 was incorporated by consensus by the framers of the Constitution and whereas Article 203C was incorporated by the then Chief Martial Law Administrator and as the same is detrimental to the basic concept of independence of Judiciary and the separation of Judiciary, the former should prevail. The latter interpretation is preferred as it will be more in consonance with the various provisions of the Constitution and in accord with justice and fair play. A person cannot be appointed on adverse terms in a new Court without his consent.

 

Even if it is to be treated as a transfer, which is in fact not, a Judge cannot be transferred as a punishment but for the public interest.

 

In any case, the consultation of the Chief Justices is required even if the transfer is for less than two years and secondly, a permanent Chief Justice cannot be transferred under the above provisions of the Constitution. The above consultation should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint or arbitrariness or unfair play.

 

Transfer of a High Court Judge to another High Court or to the Federal Shariat Court can only be made in the public interest and not for an object alien to the said object, and that the question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.

 

Transfer power cannot be invoked by the President/Executive for any purpose other than public interest and that too the transfer order can be made after consultation of the Chief Justice of Pakistan in the above terms. The power of transfer cannot be pressed into service for the purpose of inflicting punishment on a Judge or for any other extraneous consideration.

 

Per Manzoor Hussain Sial, J.‑‑

 

Federal Shariat Court was established under the cover of the Martial Law and did not fit in the scheme of the existing Courts. It cannot possibly be equated with High Court. The appointment of a Judge or Chief Justice of High Court, as Judge of Federal Shariat Court, is therefore not a transfer from one High Court to another, rather operates as his removal from office in the High Court and is fresh appointment in another Court with lack of security of tenure and risk of the modification of his terms of appointment he enjoyed as Judge or Chief Justice of the High Court.

 

The close examination of Arts.203C and 209 of the Constitution reveals that there is irreconcilable conflict between them. The. accepted principle of interpretation is that where there is conflict between the two provisions, the entire provisions of the Constitution are required to be read as a whole, and the basic features of the Constitution taken into consideration.

 

The consideration which weighed more heavily in holding that the appointment of a sitting Chief Justice or a Judge thereof in the Federal Shariat Court under Article 203C, without his consent, being violative of Article 209, was that the provision of the Constitution which corresponds more closely to and gives effect to dominant intent of the Constitution will have to be preferred in its application, to that provision, which detracts from that intent and *spirit. Undoubtedly, Article 209 guarantees the tenure of office of a Judge and explicitly secures the independence of Judiciary, which is dominant intent of the Constitution, whereas Article 203C militates against the security of tenure and independence of Judiciary and, therefore, must yield to the provisions of Article 209 of the Constitution. The introduction of Articles 203C in the Constitution by the Chief Martial Law Administrator, as against Article 209 which was enacted by the framers of the Constitution was merely one of the considerations, to hold that Article 209, which promotes security of tenure and independence of Judiciary must prevail, in its application over Article 203C, which detracts from the intent and spirit of the Constitution namely to fully secure the independence of the Judiciary by inter alia providing full security of tenure to the Judges.

 

The appointment of sitting Chief Justices and Judges of High Courts, as Judges of Federal Shariat Court, without their consent, therefore, being violative of the provisions of Article 209 of the Constitution will be void. It does not mean that Attic ‘ le 203C is void. It is, only the action taken thereunder viz. the appointment of Judges of High Courts in Federal Shariat Court, being violative of Article 209 of the Constitution is declared void.

 

(g) Constitution of Pakistan (1973)‑‑

 

‑‑‑‑ Art.200 ‑‑‑ Transfer of High Court Judges ‑‑‑ Principles ‑‑‑ Permanent Chief Justice cannot be transferred at all ‑‑‑ Transfer of a Judge of one High Court to another High Court can only be made in the public interest after consultation with Chief Justice and not as a punishment.

 

Per Sajjad Ali Shah, C.J.,

 

Article 200 of the Constitution contemplates transfer of Judges from one High Court to another by the President after “consultation” with the Chief Justice of Pakistan and the Chief Justices of both the High Courts. No such consultation is necessary if the transfer is for two years. It appears that this transfer can be allowed if it is in the public interest and is not by way of punishment.

 

Per Ajmal Mian, J.‑‑

 

In any case, the consultation of the Chief Justices is required even if the transfer is for less than two years and secondly, a permanent Chief Justice cannot be transferred under the above provisions of the Constitution. The above consultation should be effective, meaningful, purposive, consensus ­oriented, leaving no room for complaint or arbitrariness or unfair play.

 

Transfer of a High Court Judge to another High Court or to the Federal Shariat Court can only be made in the public interest and not for an object alien to the said object, and that the question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.

 

Transfer power cannot be invoked by the President/Executive for any purpose other than public interest and that too the transfer order can be made after consultation of the Chief Justice of Pakistan in the above terms. The power of transfer cannot be pressed into service for the purpose of inflicting punishment on a Judge or for any other extraneous consideration.

 

Per Manzoor Hussain, Sial, J.

 

Article 200 of the Constitution relates to transfer of a High Court Judge to another High Court without his consent for a period of two years. The perusal of this provision of the Constitution shows that consultation of the Chief ‘ Justice is needed even if the transfer is for a period of less than 2 years, and a permanent Chief Justice cannot be transferred at all.

 

Transfer of High Court Judge to another High Court or to the Federal Shariat Court can only be made in the public interest and not for an object alien to the said object, and that the question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer. It is, therefore, clear that the President cannot transfer a Judge of a High Court to another High Court except in public interest after consultation with Chief Justice of Pakistan.

 

(h) Constitution of Pakistan (1973)

 

‑‑‑‑ Art. 193(2)(a) ‑‑‑ Appointment of High Court Judges ‑‑‑ Essentials‑‑­Requirement of 10 years’ practice under Art. 193(2)(a) of the Constitution relates to the experience/ practice at the Bar and not simpliciter the period of enrolment.

 

Per Sajjad Ali Shah, C.J.

 

Under Article 193 the qualifications are specified for appointment as Judge of a High Court. One requirement is that an Advocate is eligible to be elevated only when he has been advocate of the High Court for ten years. The question arose as to whether it is necessary that such advocate must have put in ten years of active practice in the High Court or mere enrolment is sufficient. For this requirement ten years’ active practice in the High Court is necessary and mere enrolment as an advocate of the High Court is not enough if the advocate concerned has not practised in the High Court but has been doing some other job or business and was not in active practice.

 

Per Ajmal Mian,

 

Islam enjoins that, while selecting the Judges, the authority should select the people of excellent character, superior calibre and meritorious record having deep insight and profound knowledge.

 

If one carefully reads subclause (a) of clause (2) of Article 193 of the Constitution, it becomes evident that 10 years’ period referred to in subclause (a) thereof relates to experience and not the period of enrolment. Under clause (b) thereof not less than 10 years’ period is provided for civil servants for being eligible for consideration for appointment as a Judge of the High Court and out of the above 10 years, it has been provided that for a period of not less than three years, he must have served as or exercised the functions of a District Judge in Pakistan. The above subclause (b) speaks of actual experience in service and, therefore, if it is to be read with subclause (a), it becomes evident that subclause (a) also refers to the experience. In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by subclause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or

 

 

 

not? It is a matter of subjective satisfaction the Chief Justice of the High’ Court concerned and the Chief Justice of Pakistan.

 

Per Manzoor Hussain Sial, J.‑‑

 

The eligibility of an advocate for appointment as Judge of the High Court, as envisaged under Article 193 of the Constitution is that he has for a period of, or for periods aggregating not less than ten years, been an advocate of a High Court. The question arises whether the period of ten years is to be construed from the date of his enrolment alone or that he is required to put in 10 years’ practice as an advocate. Whereas subclause (2)(b) of Article 193 prescribes a period of not less than 10 years to be a Member of a civil service prescribed by law, and has, for a period of not less than three years served as or exercised the functions of a District. Judge in Pakistan, to become eligible for appointment as Judge of the High Court. It, therefore, necessarily follows that this clause has to be read with clause (a) and experience of a particular period in the profession is necessary for the advocate to become eligible for the appointment of a Judge of High Court. The suitability of the advocate on the basis of the experience for appointment as Judge of the High Court shall, however, have to be determined by the Chief Justice of the High Court, who has to initiate the panel of the candidates for appointment as Judges of the High Court to the Chief Justice of Pakistan for ultimate recommendation for the appointment of suitable persons as Judges of the High Court. Mere enrolment of an advocate for a period of 10 years is therefore not sufficient to make him eligible for his appointment as Judge of the High Court.

 

(i) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Art. 193 ‑‑‑ Appointment of High Court Judge ‑‑‑ Simpliciter political affiliation of a candidate for judgeship of the Superior Courts may not be a disqualification provided the ‘candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan ‑‑‑ Appointment of a person who was a strong activist in a political party was not desirable.

 

Per Saijad Ali Shah, C.J.‑‑

 

The political affiliation of a candidate for judgeship may not be a disqualification provided he is a person of integrity and has active practice as an advocate of the High Court and has sound knowledge of law and has also been recommended by the Chief Justice of the High Court and the Chief Justice of Pakistan.

 

Per Ajmal Mian, J.‑‑

 

A person cannot be appointed as a Judge simpliciter for the reason that he has political affiliation with a particular political party, but if he is a man of integrity and has sound knowledge of law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, then his past political affiliation will not be a disqualification. A person of integrity and sound knowledge normally serves his past connections with the political party with which he had affiliation and decides the matter purely on merits. However, it will be desirable not to appoint a person who is a strong activist in a political party as for him, it will not be possible to erase unconscious tilt in favour of his party.

 

Simpliciter political affiliation of a candidate for judgeship of a superior Court may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.

 

Per Manzoor Hussain Sial, J.‑‑

 

Political affiliation alone may not disqualify the candidate provided he is a person of unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. After he is appointed as Judge of the High Court and takes oath to perform his functions without fear, favour or illwill and decides cases .purely on merits, he would be as good a Judge as any other Judge, who had no political affiliation before assuming the office of a Judge of the High Court. It, however appears desirable not to appoint a person who has had strong affiliations with one political party or the other, as it would be not only difficult for him to shake off that impression and rather embarrassing for him to do even­handed justice to all manner of people.

 

(j) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Art. 196 ‑‑‑ Acting Chief Justice of High Court ‑‑‑ Validity ‑‑‑ Conditions‑‑‑ Sending a Supreme Court Judge as an Acting Chief Justice to a High Court is not desirable in view of clear adverse observations of Supreme Court in the case of Abrar Hasan v. Governmentof Pakistan PLD 1976 SC 315 at p.342.

 

Per Sajjad Ali Shah, C.J.

 

Although the Constitution does allow under Article 196, which provides for appointment of Acting Chief Justice of a High Court, a Judge of the Supreme Court to act as the Chief Justice of the High Court for a short time but this practice should be avoided and it would be much better if it is not done for reasons firstly that if a Judge of the Supreme Court goes as Acting Chief Justice then his judgments become appealable in the Supreme Court of which he is a permanent Judge. Secondly, such appointment causes embarrassment to the Judge of the Supreme Court because the Judges of the High Court normally do not welcome such an appointment.

 

There may be exceptional cases in which no control could be exercised over the situation. For instance, after imposition of Martial Law on 5th July, 1977, the Chief Justices of the High Courts were made Governors of the Provinces and in their places in the High ‘Courts Acting Chief Justices were appointed. It so happened that the Chief Justices remained away from the High Courts as the Governors for about fifteen months and Acting Chief Justices had to perform their duties. There was Martial Law in the country and the Constitution was held in abeyance and the system under that arrangement had to continue in such circumstances, the Judges had to be appointed and for such appointments in the High Courts, “recommendations” were made by the Acting Chief Justices. The Martial Law remained operative for a long time and the Supreme Court gave it cover of validity on the ground of the doctrine of necessity and empowered the CMLA to amend the Constitution. Article 270A was inserted in the Constitution by P.O. No. 14 of 1985, which was substituted by Act XVIII of 1985 passed by the Parliament to enable withdrawal of Martial Law vide Proclamation dated 30th December, 1985. All the appointments made in the past or for that matter in the distant past on the “recommendations” of the Acting Chief Justices are not void ab initio because they were validated later in the process and have become past and closed transaction.

 

Pier Ajmal Mian, J.‑‑

 

Sending of a Supreme Court Judge to a High Court as an Acting Chief Justice is undesirable in view of the adverse observations in the judgment of Supreme Court in the case of Abrar Hasan v. Government of Pakistan (PLD 1976 SC 315 at 342). Even otherwise this causes heart burning among the Judges of the High Court concerned, which is not conducive for maintaining congenial working relation. There is no security of tenure for an acting incumbent.

 

Per Manzoor Hussain Sial, J.

 

Article 196 is different in its import than Article 193, which relates to appointment of permanent Chief Justice of the High Court. The concept of Acting Chief Justice was initially introduced in India during prepartition days, but had always meant appointment of an Acting Chief Justice as stopgap arrangement. He is not supposed to take decisions relating to important policy matters without consulting the permanent Chief Justice;

 

The definition of Chief Justice as contained in Article 260 of the Constitution includes the Judge for the time being acting as Chief Justice of the Court. The words “time being” clearly indicate that the Acting Chief Justice has only been appointed to meet the emergency and for a brief period. The definition of word “include” indicates that it signifies something which does not belong to specie. Indeed the Constitution recognises this distinction. Again in Article 200 which deals with the transfer of High Court Judges, while a Judge who is for the time being acting as Chief Justice of A High Court, is deemed to be only a Judge of the High Court; the Chief Justice is not so included. , This clearly demonstrates that an Acting Chief Justice of the High Court is treated as a specie different from the permanent Chief Justice. Acting Chief Justice is not consultee” within the meaning of two relevant Articles of the Constitution. He is supposed to deal with only routine matters, and himself being holder of an office for a brief period cannot give opinion for the permanent appointment of Judges of the superior Courts, nor can deal with long term policy matters.

 

(k) Constitution of Pakistan (1973)‑‑‑

 

     Arts.209 & 203C ‑‑‑ Article 203C of the Constitution of Pakistan having been incorporated by the Chief Martial Law Administrator while Art209 of the Constitution enacted by the framers of the Constitution, Art.209 of the Constitution shall prevail over Art.203C of the Constitution.‑‑‑[Interpretation of Constitution] .

 

(1) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Preamble ‑‑‑ Interpretation of Constitution ‑‑‑ Article in the Constitution enacted by the framers of the Constitution to prevail over the one incorporated by the Chief Martial Law Administrator where there is irreconcilable conflict.

 

Per Sajjad Ali Shah, C.J.; Ajmal Mian, Fazal Ilahi Khan and Manzoor Hussain Sial, JJ.; agreeing‑‑

 

(m)  Constitution of Pakistan (1973)‑‑

 

‑‑‑‑ Art. 185(3) ‑‑‑ Leave to appeal was granted to examine in detail whether the impugned judgment of High Court was sustainable on the ground that it was consistent with the correct interpretations of the Articles in the Constitution relating to the Judiciary.

 

(n) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 199 & 184(3) ‑‑‑ Invocation of jurisdiction under Arts. 184(3) 4 199 of the Constitution ‑‑‑ Locus standi ‑‑‑ Remedies under Arts. 199 & 184(3), Constitution of Pakistan available in a High Court and the Supreme Court respectively are concurrent in nature ‑‑‑ Question of locus standi is relevant in a High Court, but not in the Supreme Court when the jurisdiction is invoked under Art. 184(3) of the Constitution.

 

(o) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 184(3) & 199 ‑‑‑ Original jurisdiction of Supreme Court ‑‑‑ Petition under Art. 184(3), Constitution of Pakistan ‑‑‑ Maintainability ‑‑‑ Petitioner filed Constitutional petition under Art. 199 of the Constitution of Pakistan in the High Court which was dismissed without deciding the questions of controversy‑‑‑ Petitioner filed the petition for leave to appeal before the Supreme Court against the impugned judgment of the High Court and also filed the direct petition under Art. 184(3) of the Constitution before Supreme Court praying for examination of Articles of the Constitution relating to the Judiciary and in that connection he called in question some appointments in the Superior Judiciary ‑‑‑ Maintainability and validity of petition under Art. 184(3) of the Constitution ‑‑‑ Held, petitioner had rightly invoked the jurisdiction of Supreme Court under Art.184(3) of the .Constitution and leave had rightly been granted in the other petition for the reason that in both the cases common questions of interpretation of the Articles of the Constitution relating to the Judiciary were involved which were of public importance ‑‑‑ Contention that interpretation of the Articles of the Constitution in both the cases would be merely an exercise of academic nature was repelled, for such exercise had become very essential and necessary and would help great deal in making the matters very clear by interpreting the relevant provisions of the Constitution relating to Judiciary.

 

(p) Constitution of Pakistan (1973)‑‑‑

 

‑‑Preamble ... Interpretation of Constitution ‑‑‑ Principles ‑‑‑ Interpretation of Constitution is prerogative as well as duty of Superior Courts as envisaged by the Constitution ‑‑‑ Word “jurisdiction” used in the Constitution denotes authority for the Courts to exercise the judicial power, as such power is inherent in the superior Courts to interpret, construe and apply law as a result of system of division of powers ‑‑‑ Such interpretative function of superior Courts cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State ‑‑‑ Supreme Court being creature of the Constitution cannot claim any right to strike down any provision of the Constitution but can interpret the Constitution even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court.

 

In. the Constitution the word used is, “jurisdiction” which denotes authority for the Courts to exercise the judicial power as such power is inherent in the superior Courts to interpret, construe and apply law as a result of system of division of powers. The “Judicial Power” is not constitutionalised in the Courts as in American Constitution, although the Courts in Pakistan traditionally exercise the jurisdiction over the matters though not exclusive, which includes exercise of judicial power.

 

Interpretation of the Constitution is the prerogative as well as the duty of the superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. Cases of conflict between the supreme law of the Constitution and an enactment might come for adjudication ‘before the ‘ Courts and in such cases it would be plain duty of the superior Courts, as its preservers, protectors and defenders, to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provisions. The power of judicial review therefore must exist in Courts of the country in Order that they may be enabled to interpret, the Constitution in all its multifarious bearings on the life of the citizens in the country. The Constitution ought to be interpreted as an organic whole giving due effect to its various parts and trying to harmonise them so as to make it an effective and efficacious’ instrument for the governance of the country.

 

Supreme Court is the creature of the. Constitution and does not claim any right to strike down any provision of the Constitution, but does claim right to interpret the Constitution, even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court. This right to interpret the Constitution is not acquired de hors the ‘Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself.

 

(q) Interpretation of Constitution--

 

‑‑‑‑ Intention and scope of a word. in the minds of die framers of the Constitution ‑‑‑ Determination ‑‑‑ Court has not to shirk its duty of interpreting the Constitution to supply reasonably correct meaning to a word in the Constitutional provision in order to harmonise the provision with other provisions and make the Constitution workable to resurrect the independence of the Judiciary as guaranteed in the Constitution and Islam.

 

(r) Interpretation of Constitution‑‑‑

 

‑‑‑‑ Choice between two forums or provisions ‑‑‑ Duty of Court ‑‑‑ If there is choice between two forums or provisions, then the provision beneficial to the affected persons should be adopted or resorted to.

 

Per Ajmal Mian, J.‑‑

 

(s) Constitution of Pakistan (1973)

 

‑‑‑‑ Art. 184(3) ‑‑‑ Constitutional petition under Art. 184(3), Constitution of Pakistan ‑‑‑ Locus standi to file ‑‑‑ Not only a practising advocate but even a member of the public is entitled to see that the three limbs of the State, namely, the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affects the public at large.

 

(t) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts 184(3), 177 & 193 ‑‑‑ Constitutional petition under Art. 184(3)‑‑­Maintainability ‑‑‑ Appointment of Supreme Court and High Court Judges ‑‑‑ If the appointments of Judges are not made in the manner provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people‑‑­Constitutional questions as to the working of the judiciary as an independent organ of the State are of great public importance and liable to be judicially reviewed under Art. 184(3) of the Constitution of Pakistan.

 

(u) Constitution of Pakistan (1973)‑‑

 

‑‑‑‑ Art. 184(3) ‑‑‑ Jurisdiction of Supreme Court under Art. 184(3), Constitution of Pakistan ‑‑‑ Scope ‑‑‑ Supreme Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights, conferred by Chap. 1, Part II of the Constitution even suo motu without having any formal petition.

 

(v) Constitution of Pakistan (1973)

 

‑‑‑‑ Arts. 177, 193 & 185(3) ‑‑‑ Appointment of Judges of superior Courts ‑‑‑ Leave to appeal was granted to examine a number of events affecting the working of Judiciary which resulted into lack of confidence in the Judiciary viz. bypassing conventions/practices in the appointment of the Judges of the superior Courts; induction of ad hoc Judges without filling in the vacancies of the sanctioned strength by permanent appointments; practice during Martial Law days to appoint Acting Chief Justices for indefinite long periods, inter alia, in the High Courts malafidely, at present there were three Acting Chief Justices working at Lahore, Karachi and Peshawar; out of these three, two were the permanent Judges of Supreme Court; Chief Justice of the Federal Shariat Court was also appointed about two years back not for any definite period but until further order; two permanent Chief Justices of the High Courts, namely, of Sindh High Court and of Lahore High Court were appointed as ordinary Judges of the Federal Shariat Court‑‑‑Controversy had also arisen on the question, as to what extent the recommendations of the Chief Justices of the High Courts and of Chief Justice of Pakistan were binding on the Executive, as it was a matter of common knowledge that some of the Judges, who had recently been appointed in the High. Courts, had been appointed despite of opposition, inter alia by the Chief Justice of Pakistan; six Additional Judges of the High Court of Sindh who had completed their two years’ tenure, contrary to the wellestablished practice of their being appointed as permanent Judges in the absence of anything against them, were dropped without disclosing any reason and act of dropping Additional Judges upon the completion of their two years’ period was repeated in Lahore High Court inasmuch as they were not appointed as permanent Judges without disclosing any reason upon their completion of two years’ period.

 

(w) Constitution of Pakistan (1973)

 

Arts. 4 & 25‑‑‑Fundamental rights ‑‑‑ Right of “access to justice to all” is an inviolable right enshrined in the Constitution of Pakistan which is equally found in the doctrine of due process of law7Right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal ‑‑‑ Without having an independent Judiciary, the Fundamental Rights enshrined in the Constitution will be meaningless and will have no efficacy or beneficial value to the public at large.

 

(x) Islamic Jurisprudence

 

‑‑Administration of justice ‑‑‑ Foundation of Islam is on justice which is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the AngloSaxons ‑‑‑ Justice in Islam seeks to attain a higher standard of what may be called “absolute justice”.

 

The foundation of Islam is on justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the AngloSaxons. Justice in Islam seeks to attain a higher standard of what may be called “absolute justice” or “absolute fairness”. There are repeated references to the importance of justice and of its being administered impartially in Holy Qur’an.

 

Following is deducible from the Holy Qur’an and other Islamic literature on the subject of Administration of Justice in Islam:‑‑

 

(i) That the Holy Qur’an repeatedly enjoins that one who believes in Allah His Prophet Muhammad (p.b.u.h.), Qur’an and Sunnah, should stand out firmly for justice, as witnesses to Allah, even as against himself or his parents, his kin rich and poor,

 

(ii) that the hatred of others should not make you swerve to wrong and depart from justice;

 

(iii) that the Judges are not to be led by personal likes or dislikes, love or hate:

 

(iv) that the Judges should maintain strict impartiality and even in treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential;

 

(v) to a Judge, all are equal in the eye of the law. As God dispenses justice among His subjects, so a Judge should judge without any distinction whatsoever;

 

(vi) that a Judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and when truth presented itself to him, he must pass judgments without fear, favour or prejudice;

 

(vii) that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than the merits is a great sin entailing severe punishment;

 

(viii) that while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior calibre and meritorious record. Abundance of litigation and complexity of cases should not make them lose their temper;

 

(ix) that a Judge should not be corrupt, covetous or greedy;

 

(x) that a Judge should be paid handsomely so that his needs are fully satisfied and he is not required to beg or borrow or resort to corruption;

 

(xi) that a Judge must be a man, having deep insight, profound knowledge of Shariah, Godfearing, forthright, honest, sincere, man of integrity;

 

(xii) that a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the path of rectitude;

 

(xiii) that Judges should be given such a prestige and position in the State that none of the Government functionaries can over lord them or bring them harm.

 

(y) Interpretation of Constitution

 

‑‑‑ Approach while interpreting a Constitutional provision has to be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively ‑‑‑ Interpretation cannot be a narrow and pedantic‑‑‑Courts’ efforts should be to construe the same broadly, so that it may be able to meet’ the requirement of ever changing society ‑‑‑ General words cannot be construed in isolation but the same are to be construed in the context in which they are employed ‑‑‑ In other words their colour and contents are derived from their context.

 

(z) Constitution

 

‑‑‑‑ Law of Constitution consisting, of Rules enforced or recognized by Courts and the conventions of the Constitution consisting of customs, practice maxims or precepts which are not enforced or recognized by the Courts ‑‑‑ Applicability‑‑­Principles.

 

An Introduction of the Study of the Law of the Constitution by A.V. Dicey; The Law and the Constitution by Sir W. Ivor Jennings; The Statute of Westminster and Dominion Status, Fifth Edn. by K.C. Wheare, F.B.A.; Modem Constitutions by K.C. Wheare; Studies in Constitutional Law by Professor Colin R. Munro; Constitutional and Administrative Law, 7th Edn. by Late 0. Hood Phillips; Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994, SC 268; Constitutional Conventions‑‑The Rules and Forms of Political Accountability by Geoffery Marshall; Constitutional and Administrative Law, Sixth Edn. by Rodney Brazier; Student’s EnglishArabic Dictionary, Second Edn., printed by Catholic Press, Beirut, The Mejelle translated by C.R. Tyser, B.A.L. President, District Court of Kyrenta and 2 others; The Principles of Muhammadan Jurisprudence by Abdur Rahim, M.A., 1968 Edn.; Pakistan and others v. PublicatLarge and others PLD 1987 SC 304 and Pakistan v. PublicatLarge PLD 1986 SC 240 ref.

 

(aa) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Art. 8(l) ‑‑‑ Provision of Art.8(l) of the Constitution of Pakistan (1973) is founded on the assumption that custom or usage has the force of law as the law has itself but they will not be enforced to the extent of inconsistency within the Fundamental Rights.

 

(bb) Interpretation of Constitution‑‑‑

 

‑‑‑‑ Courts, while construing a Constitutional provision, can press into service an established Constitutional convention in order to understand the import and the working of the same, ‘if it is not contrary to the express provision of the Constitution ‑‑‑ Islam also recognizes the conventions as binding if these were not contrary to Holy Qur’an and Sunnah.

 

(cc) Islamic Jurisprudence‑‑‑

 

‑‑‑‑ ConventionsEffect ‑‑‑ Conventions which are not contrary to Holy Qur’an and Sunnah have binding effect.

 

(dd) Constitution of Pakistan (1973)”

 

‑‑‑‑ Preamble ‑‑‑ While construing the provisions of the Constitution, Court can invoke aid of Islamic Jurisprudence besides pressing into service the established conventions, if any.

 

(ee) Constitution Of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 177 & 193 ‑‑‑ Appointment of Judges of superior Courts‑‑‑If a wrong person is appointed as a Judge of a superior Court, it affects adversely the quality of the Court’s work, with the result that litigant public criticises the Court ‑‑‑ Since the conduct of a Judge of a superior Court cannot be discussed in the Parliament in view of Art.68, Constitution of Pakistan, the Executive in fact is not accountable as to the working of a Judge.

 

(ff) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Arts. 177 & 193 ‑‑‑ Appointment of Judges of superior Courts ‑‑‑ Islam enjoins that, while selecting the Judges, the Authority should select the people of excellent character, superior calibre and meritorious record having deep insight and profound knowledge.

 

(gg) Islamic Jurisprudence

 

‑‑‑‑ Administration of justice ‑‑‑ Appointment of Judges of superior Courts ‑‑‑ Islam enjoins that, while selecting the Judges, the Authority should select the people of excellent character, superior calibre and meritorious record having deep insight and profound knowledge.

 

(hh) Constitution of Pakistan (1973)

 

‑‑‑‑ Arts. 209, 203C, 203D, 203F & 203GG ‑‑‑ Federal Shariat Court is not equated with a High Court ‑‑‑ Appointment of a permanent sitting Chief Justice of a High Court or a sitting permanent Judge thereof as a Judge of Federal Shariat Court is in fact a fresh appointment in a different Court ‑‑‑ Such an appointment cannot be treated as a transfer from one High Court to another High Court or a Court equivalent to it ‑‑‑ Such fresh appointment, in fact, impliedly involves removal from office of a Chief Justice or a Judge of a High Court as the case may be for the period for which he is appointed in the Federal Shariat Court Once a sitting Chief Justice of a High Court or a permanent Judge thereof is appointed in the Federal Shariat Court without his consent, he becomes susceptible under Art.203C(4B) of the Constitution to actions detrimental to his security of tenure which is guaranteed by Art.209(7) of the Constitution.

 

The Federal Shariat Court is a new Court created by the Martial Law regime. It does not fit in the hierarchy of the Courts originally provided under the Constitution. It may be pointed out that Article 203GG lays down that subject to Articles 203D and 203F, any decision of the Court in exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court, meaning thereby, that the Federal Shariat Court is not equated with a High Court. The appointment of a permanent sitting Chief Justice of a High Court or a sitting permanent Judge thereof is in fact a fresh appointment in a different Court. Factually, it cannot be treated as a transfer from one High Court to another High Court or a Court equivalent to it. The above fresh appointment in fact impliedly involves removal from office of a Chief Justice or a Judge of a High Court, as the case may be, for the period for which he is appointed in the Federal Shariat Court. That once a sitting Chief Justice of a High Court or a permanent Judge thereof is appointed in the Federal Shariat Court without his consent, he becomes susceptible under clause (413) of Article 203C to actions detrimental to his security of tenure which is guaranteed by the Article 209(7) of the Constitution, inasmuch as the President may at any time, by an order in writing, modify the terms of appointment of such a Judge or he may assign to such Judge any other office, i.e. any office other than of a Judge or require him to perform such other functions as the President may deem fit, which may not necessarily be judicial functions.

 

A Chief Justice of the High Court, who may be senior to the Chief Justice of the Federal Shariat Court, after appointment in the Federal Shariat Court, becomes the junior most Judge. This also adversely affects the terms of a Judge.

 

(ii) Constitution of Pakistan (1973)‑‑‑

 

‑‑‑‑ Preamble ‑‑‑ Interpretation of Constitution given by the Supreme Court is binding on the Executive.

 

Per Manzoor Hussain Sial, J.‑‑

 

(jj) Interpretation of Constitution‑‑‑

 

‑‑‑‑ Where the Constitution provides a criterion for doing a thing in one provision then that criterion can be utilised for doing another thing of similar nature provided in the Constitution.

 

(kk) Interpretation of Constitution ‑‑‑                     

 

‑‑‑‑ Conflict between the two provision visions, the entire provisions of the of the Constitution ‑‑‑ Remedy—Where there is conflict between the two pro whole, and the basic features of the Constitution are required to be read as a Constitution taken into consideration.

 

(ll) Interpretation of Constitution

 

‑‑‑‑ Conflict between the two provisions of the Constitution ‑‑‑ Provision of the Constitution which corresponds more closely to and gives effect to dominant intent of the Constitution will have to be preferred in its application, to that provision which detracts from that intent and spirit.

 

(mm) Interpretation of Constitution‑‑‑

 

‑‑‑‑ Conflicting provision of Constitutive ‑‑‑Harmonisation by Court‑‑­Principles ‑‑‑ Reading words in the constitution or Statute to give effect to the free intention of lawmaker does not amount to rewriting or amending the Constitution or the Statute but the purpose is to give effect to its true intent.

 

The Court is empowered to harmonise conflicting provisions of the Constitution and the Statutes and if it is not possible to reconcile the inconsistent provisions, to declare which of the provisions will be preferred and given effect. The Court in exercise of. its inherent judicial power can even read “words” in the Constitution or Statute in order to give effect to the manifest intention of the Legislature.

 

In order to give effect to the true intention of the lawmakers it is permissible for the Courts to read words in the Statute. it is true that generally Court of law is not authorised to alter the language of the Statute for the purpose of supplying a meaning, yet in certain, circumstances it is permissible for the Courts to give effect to the true and patent intention of the lawmaker by supplying  omissions” in order to avoid manifest injustice. It is a misconception, therefore, to consider that the reading words in the Constitution or Statute to give effect to the free intention of the lawmaker amounts to rewriting or amending the Constitution or the Statute. On the other hand, its purpose is to give effect to its true intent.

 

The Court following the accepted principles of interpretation acts within its jurisdictional domain to give effect to a particular provision, so as to bring it in accord, with the patent intention of the framers of the Constitution.

 

 

[Caselaw and Reference Books extensively referred, relied and discussed.]

 

Petitioner in person (in C.P. No.29 of 1995 and Appellants Nos and 2 in C. A. No. 805 of 1995).

 

Raja M. Akram, Senior Advocate Supreme Court with Ejaz Muhammad Khan, AdvocateonRecord for Appellants Nos. 3 to 7.

 

Yahya Bakhtiar, Senior Advocate Supreme Court, Qazi Muhammad Jamil, AttorneyGeneral for Pakistan, Aitzaz Ahsan, Senior Advocate Supreme Court, Faqir Muhammad Khokhar, Raja M. Bashir, Farooq H. Naik, Muhammad Roshan Issani, Deputy AttomeyGenerals and Mehr Khan Malik, AdvocateonRecord for the Federation of Pakistan.

 

Sharifuddin Pirzada, Senior Advocate Supreme Court assisted by Anwar Mansoor, Advocate, S.M. Zafar and Fakhruddin G. Ebrahim, Senior Advocates Supreme Court: Amicus curiae.

 

Mian Abdul Sattar Najam, AdvocateGeneral, Punjab with Rao Muhammad Yousaf Khan, AdvocateonRecord, Abdul Ghafoor Mangi, AdvocateGeneral, Sindh, SaifurRehman Kiyani, AdvocateGeneral, N.W.F.P. and Yakub K. Eusafzai, AdvocateGeneral, Balochistan on Court Notice.

 

Muhammad Akrarn Shaikh, Senior Advocate Supreme Court, President for the Supreme Court Bar Association.

 

Dr. Riazul Hassan Gilani, Advocate Supreme Court with Zafar lqbal Chaudhry, Advocate Supreme Court for the Lahore High Court Bar Association.

 

Shahid Orakzai, Free Lance Journalist and Professor Mehmood Hussain (individuals).

 

Dates of hearing: 5th, 6th, 19th, 20th, 22nd November, 1995; 21st 24th, 28th, 31st January; 4th, 8th February; 3rd, 6th, 10th and 13th March 1996.

 

SHORT ORDER

 

For reasons to be recorded later, we pass the following short order

 

2. In these two cases some appointments of Judges in the Superior Judiciary are challenged and called in question on the ground that they have been made in contravention of the procedure and guidelines laid down in the Constitution, and in this context we are called upon to examine in detail the relevant Articles pertaining to the Judiciary specified in Part VII of the Constitution to render an authoritative decision on the question of interpretation of such Articles in the light of 6ther corelated Articles.

 

3. Pakistan is governed by the Constitution of the Islamic Republic of Pakistan, 1973, preamble of which says that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and independence of Judiciary fully secured. It also provided that the Muslims shall be enabled to ordain their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah. The Preamble is reflection of the Objectives Resolution which is inserted in the Constitution as Article 2A as substantive part of the Constitution by P.O. No. 14 of 1985. Article 2 of the Constitution states in unequivocal terms that Islam shall be the State religion of Pakistan. Part IX of the Constitution contains Islamic Provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. The Institution of Judiciary in Islam enjoys the highest respect and this proposition is beyond any dispute. The appointments of Judges and the manner in which they are made have close nexus with independence of Judiciary.

 

     4. In the provisions relating to the Judicature in the Constitution, Article 175 provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. SubArticle (2) thereof provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Sub Article (3) provides that the Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day. After expiry of the stipulated period, this Court has given judgment in the case of Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105,and has held on the subject of independence of Judiciary as under:‑‑

 

“that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences’, inducements or pressures, direct or indirect, from any quarter for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues /of a judicial nature.”

 

In this judgment this Court has further provided guidelines for financial independence of the Judiciary. The cutoff date of 23rd March, 1996 has been given by this Court to enable the Provincial Governments for final separation of Judiciary from the Executive as envisaged in the judgment mentioned above.

 

5. We have examined in detail the special characteristics of out present Constitution in conjunction with its historical background and Islamic Provisions while being fully cognizant of the powers of this Court to interpret the Constitution keeping in view the “Doctrine of Trichotomy of Powers”, and have heard in detail with utmost patience not only the learned counsel appearing for the parties, but also the most senior counsel as amicus curiae, representatives of the Bar Associations of the Supreme Court and High Courts and the individuals who requested for hearing them on the subject of interpretation of provisions of the Constitution relating to the Judiciary. The valuable assistance rendered by all of them is very much appreciated.

 

6. Article 177 of the Constitution envisages that the Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice. As against this, for appointment of Acting Chief Justice of Pakistan, Article 180 provides that when the office of the Chief Justice of Pakistan is vacant or he is absent or unable to perform the functions of his office, the President shall appoint the most senior of the other Judges of the Supreme Court to act as the Chief Justice of Pakistan. We are not going into the question of interpretation of these two provisions in the light of contention that criterion of the most senior Judge in the appointment of Acting Chief Justice be impliedly read in the appointment of the Chief Justice of Pakistan for the reasons firstly that in Constitutional Petition No.29 of 1994, which is directly filed in this Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide C.M.A. 541K of 1996, dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly, the cases are pending in which the same subjectmatter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions.

 

7. Our conclusions and directions in nutshell are as under:

 

(i)  The words “after consultation” employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be  effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as tothe fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

 

(ii)    That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

 

(iii)   That the permanent vacancies occurring in the offices of Chief Justice and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

 

(iv)  That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.

 

(v) That in view Of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

 

(vi)   An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of Constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

 

(vii) That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by’ the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reason/reasons to be recorded by the President/ Executive.

 

(viii)  That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the Framers of the Constitution, the same shall prevail and, hence, such an appointment will be, void.

 

(ix)  That transfer of a Judge of one High Court to another High Court can  only be made in the public interest and not as a punishment.

 

(x)’   That the requirement of 10 years’ practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.

 

(xi)   That the simpliciter political affiliation of a candidate for judgeship of the superior Courts may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.

 

(xii) That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of K this Court in the case of Abrar Hassan v. Government of Pakistan and others PLD 1976 SC 315 at 342.

 

(xiii)That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.

 

In view of what is stated above, we direct:

 

(a) I  That permanent Chief Justices should be appointed in terms of the above conclusion No.(iii) in the High Courts where there is no permanent incumbent of the office of the Chief Justice.

 

(b)   That the cases of appellants Nos.3 to 7 in Civil Appeal No.805 of 1995. (i.e. Additional Judges who were dropped) shall be processed. And considered for their permanent appointment by the permanent Chief Justice within one month from the date of assumption of office by him as such.

 

(c) I That appropriate action be initiated for filling in permanent vacancies of Judges in terms of above conclusion No.(iii).

 

(d) That ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should be sent back P to their respective High Courts in view of above conclusion No.(iv).

 

(e)    That the cases of the appointees of the Federal Shariat Court be processed and the same be brought in line with the above conclusion Q No.(viii); and

 

(f)     That upon the appointment of the permanent Chief Justices in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Courts’ Judges in terms of the above declaration No. 13 within one month from the date of this order or within one month from the date of assumption of office by a permanent incumbent whichever is later in time and to take action for regularising the appointments/confirmation of the Judges recently appointed/confirmed inter alia of respondents Nos.7 to 28 in Civil Appeal No.805/95 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of Ad Hoc/Acting Judges.

 

Resultantly, the direct petition and the appeal captioned above are allowed in the terms and to the extent indicated above.

 

JUDGMENT

 

SAJJAD ALI SHAH, C.J. ‑‑‑Constitutional Petition No.29 of 1995 is directly filed in this Court under Article 184(3) of the Constitution in which the petitioner challenged, inter alia, the appointment of the then Acting Chief Justice of Pakistan, appointment of the Chief Justice of the High Court of Sindh as Judge of the Federal Shariat Court and nonconfirmation of the six Additional Judges of the High Court of Sindh as they were not appointed as permanent Judges. It is mentioned in this petition that the petitioner had filed Writ Petition No.869/91 in the Lahore High Court, which was admitted for regular hearing and order of constitution of a larger Bench was also passed, but thereafter hearing did not take place and the petition remained pending without final adjudication.

 

2. Civil Petition 11 of 1995 was filed on 27th October, 1994 seeking leave to appeal against the judgment of the Division Bench of the Lahore Court, whereby three Writ Petitions i.e. Writ Petitions Nos.875/94, 10186/94 and 9893/94, were dismissed in limine. The petitioner in this petition has challenged, inter alia nonconfirmation of six Additional Judges in the Lahore High Court and appointment of twenty Additional Judges and the Acting Chief Justice of the Lahore High Court.

 

3. After hearing the petitioner it was found that in both the petitions interpretation of Articles 2, 2A, 4, 8,’9, 14, 25, 175, 176, 177, 180, 181, 182, 192, 193, 195, 196, 197, 199, 203(c) and 4(b), 209 and 260 of the Constitution was required. On 4th July, 1995 notice was issued to the learned Attorney. General as contemplated under Order XXVIIA, C.P.C. to assist the Court on the interpretation of the Articles of the Constitution. The record of Writ Petition No.869/91 was also summoned from the Lahore High Court in view of the grievance of the petitioner that the said writ petition, which was filed in the year 1991 Was pending without progress of the hearing. On 9th July, 1995 notice was issued to the Secretary, Ministry of Law, Justice and Parliamentary Affairs and the learned AdvocateGeneral, Punjab as the appointments in question related mostly to the Lahore High Court and the cases were ordered to be heard by a Bench of five Judges. On 18th July 1995, by a common order, the Constitutional petition was admitted to regular hearing and leave to appeal was granted in the civil petition to examine in detail whether the impugned judgment S was sustainable on the ground that it was consistent with the correct interpretation of the Articles in the Constitution relating to the Judiciary. The, miscellaneous application, which was filed on behalf of the five respondents requesting their transposition as copetitioners, was directed to be taken up for consideration at the time of final hearing. After grant of leave, Civil Petition No. 11 of 1995 was registered as Civil Appeal No.805 of 1995. M/s. S.M. Zafar and Fakhruddin G. Ebrahim, learned Senior Advocates Supreme Court, were requested to assist the Court as amicus curiae.

 

4. On 8th October, 1995 the application for transposition of the five respondents as coappellants was allowed as the learned AttorneyGeneral for Pakistan present in the Court stated that he had no objection. An application was filed on behalf of the President and VicePresident of the Lahore High Court Bar Association with prayer to be impleaded as party in the public interest as the question involved was that of interpretation of the Articles of the Constitution relating to the Judiciary. Mr. S.M. Zafar, Senior Advocate Supreme Court, who was requested to assist as amicus curiae, sent an application for adjournment on the ground that he was out of country as a member of parliamentary delegation to U.S.A. Mr. Fakhruddin G. Ebrahim, who also was requested to assist the Court as amicus curiae, present in the Court stated that there should be one continuous hearing of both the cases and suggested that all the Bar Associations be requested to assist the Court in the proceedings. In the result, notices were issued to the Presid ents of the Supreme Court Bar Association and of all the High Court Bar Associations of the country. Notices were also issued to all the learned AdvocatesGeneral of the Provinces. Mr. Sharifuddin Pirzada, Senior Advocate Supreme Court, was also requested to assist the Court as amicus curiae.

 

5. In Civil Appeal 805 of 1995 as many as five miscellaneous applications were filed and registered. The first application is C.M.A. 703 of 1995 in which the prayer is that the Federal Government may be restrained from filling in the vacancies of respondents 29 to 34 now transposed as coappellants. The second application is C.M.A. 845 of 1995 in which prayer is for calling for the record specified in paragraph 6 of the application at page 131 of the paper book of that appeal wherein it has been stated that Mr. Justice Saad Saood Jan as Acting Chief Justice of Pakistan refused to make recommendations in the capacity of Acting Chief Justice. The third application is C.M.A. 762 of 1995 by the transposed coappellants requesting for summoning of the record pertaining to their appointments as Additional Judges and subsequent nonconfirmation/non-­making as permanent Judges. Part (ii) of the prayer relates to the record pertaining to the appointments of other respondents as Additional Judges till the disposal of the appeal. The fifth application is C.M.A. 864 of 1995 by the President and VicePresident of the Lahore High Court Bar Association with the prayer to be impleaded as party, but has become infructuous as the notices had already been issued by this Court to all the Presidents of the Bar Associations of the High Courts of the Country.

 

6. The D.M.G./CS.P. Officers Association filed C.M.A. 41 of 1996 in the Constitutional Petition 29/94 with the request that their representative be heard in the proceedings which involved their interest as well. Subsequently, when notice was issued and opportunity was given to them at the end of the proceedings, n o body appeared. On the said. miscellaneous applications orders were not passed and they were kept pending for hearing at the end, of the proceedings because our intention was to concentrate on interpretation of the Articles of the Constitution relating to the Judiciary, and when the proceedings were near completion, order was passed for making available the record of the appointments of the respondents in the civil appeal and other relevant record so as to peruse it if and when such need was felt. The Federal Ministry of Law cooperated and made the record available to be produced in the Court on an hour’s notice. We did not feel it necessary to peruse the record.

 

7. After granting leave in the civil petition and admitting to regular hearing the Constitutional petition at Lahore on 18th July, 1995, these cases were heard at Islamabad for long seventeen days, with adjournments inbetween, and in Karachi for ten days. So in all hearing after grant of leave and admission ran over twentyseven days when the arguments of the learned counsel for both the parties and the learned amicus curiae were concluded on 13th March, 1996. On 1731996, one of us on the Bench, namely. Mr. Justice Mir Hazar Khan Y~hoso could not sit on the Bench due to his indisposition. Mr. Shahid Orakzai, a free lance journalist who had filed an application requesting his impleadment as party to the proceedings, was present in the Court and requested that he,may be heard. He was directed to make his submissions in writing and the hearing was adjourned to the following day. On 18th March, 1996 as well Mr. Justice Haza Khan Khoso was unable to sit on the Bench due to his illness. It was found that Mr. Shahid Orakzai had filed an application in which detailed submissions had been made and annexures and newspaper clippings attached in support of his submissions. Hence after a short hearing, he was assured that his submissions would be considered. Since one of us namely, Mr. Justice Manzoor Hussain Sial, was due to retire and his last working day was 20th March, 1996, and the arguments had already been concluded, the same date i.e. 20th March, 1996 was fixed for announcement of the short order. Mr. Justice Mir Hazar Khan Khoso did not participate in the writing of the short order because of his indisposition although he was requested to do so and he agreed but did not come, and also did not sit on the Bench when the short order was announced. In fact he sent an application on 18th March, 1996 requesting leave for one week on the ground of his illness which prevented him from sitting on the Bench to decide the lis. Leave was granted. The copies of the ordersheet of l7th and 18th March, 1996 and the short order passed on 20th March, 1996 were sent to Mr. Justice Mir Hazar Khan Khoso, which were received by him.

 

8. Initially, after the notice, Raja M. Bashir learned Deputy Attorney ­General, appeared and raised objection that the petition directly filed in this Court was not maintainable as on the same subjectmatter the petitioner had filed Writ Petition No.869 of 1991 in the Lahore High Court which was pending. On our inquiry, the petitioner explained that he had filed that writ petition in the year 1991, but somehow it was pending without any hearing taking place, and in that manner more than three years had expired. The petitioner was directed to produce copies of the ordersheet and the memo. of the petition in the High Court so that it may be ascertained as to whether the petitioner was justified to exercise his right of choice of the forum in the Supreme Court on the ground of delay and inaction in the High Court. He was unable to produce the documents mentioned above and stated that the office of the High Court was indulging in dilatory tactics resulting in his inability to procure the certified copies. In such circumstances, order was passed on 14th June, 1995 for production of the record of the writ petition in the Lahore High Court. Perusal of the record of Writ Petition No.869 of 1991 showed that the petitioner therein had challenged Fifth, Sixth, Seventh, Eighth and Twelfth Amendments in the Constitution. In the direct petition filed in this Court, the subjectmatter is more or less same, calling for examination of the Articles of the Constitution relating to the Judiciary, besides challenging certain appointments of Judges made thereunder.

 

9.  At the stage of grant of leave and admission of the two petitions mentioned above, the learned AttorneyGeneral contended that Civil Petition No. 11 of 1995, in which the judgment of the High Court is impugned, was not a fit matter for grant of leave for the reasons firstly that the petitioner had used in the memo of the petition abusive language in respect of the Judges and secondly that as the prayer in the writ petition in the High Court was for issuance of a writ of quo warranto, it was dismissed because writ in the shape of quo warranto could not be issued against any Judge. Now so far the first reason is concerned, we have gone through the contents of the memo. of the petition alongwith the learned Attorney General, who has pointed out certain portions of the petition, which is written in Urdu, and stated that the language used therein was not proper, and at one place reference was made to the words which have been used in respect of a Judge. It was explained by the petitioner that the words used by him is a proverb in Urdu which means a person who is simpleton and that this portion is not abusive at all. On the other hand the learned AttorneyGeneral stated that the phrase meant weakwilled person from whom anything could be got done. We are of the view that it would have been much better and proper if such a proverb would not have been used in respect of an honourable Judge. But a petition is to be read as a whole and it is to be seen as to what the prayer is and what are the questions involved, and a petition cannot be dismissed on such a short ground.

 

10. Our attention was drawn by the learned AttorneyGeneral to paragraph, 7 of the petition in which the appointment of one Judge has been described mala fide having been made to reward him for services rendered by him in the past to Pakistan People’s Party. Perusal of this paragraph shows that the petitioner has mentioned about a Judge of the Lahore High Court that he was appointed at the time when a murder case was pending against him in which he was on bail. That after appointment this Judge was stationed at the Rawalpindi Bench of the Lahore High Court where the case was pending and at that time hearing of application under section 265K, Cr.P.C. for his premature acquittal was to take place, which was bound to be influenced by the presence of the learned Additional Judge at Rawalpindi. We are unable to find anything objectionable with the narration or description of this fact. On the contrary we find that the grievance of the petitioner is that appointments of some Judges in, the High Court were not made in strict accordance with the provisions of the Constitution and some Additional Judges appointed already have not been made permanent, hence such action of the Government is in violation of the Constitutional requirements. In this connection, contention was raised by the petitioner that under Article 193, not only the procedure for appointments is provided, but prerequisite qualifications are also mentioned, and that Article 197 envisages appointment of Additional Judges in the High ‘Court, hence both are to be read together showing mode of appointment and permanent appointment in the Constitutional scheme on the basis of “consultation” by the President with the Chief Justice of the High Court concerned, Governor and the Chief Justice of Pakistan as is mentioned in Article 193. Likewise the petition also calls for examination of other like provisions of the Constitution relating to other appointments in the Judiciary, such as, Article 196, which provides for appointment of Acting Chief Justice in a High Court and Article t80 which provides for appointment of Acting Chief Justice of Pakistan.

 

11. The learned AttorneyGeneral submitted that since Civil Appeal No.397K of 1990 titled as Abdul Mujeeb Pirzada v. Federation of the Islamic Republic of Pakistan and others and Civil Appeal No.399K of 1990 titled as Haji Ahmed v. Federation of Pakistan and others are pending on the same subjectmatter in this Court, they should also be taken up for hearing alongwith the cases in hand. We have been informed by the office that in both the appeals mentioned above, Eighth Amendment in the Constitution is called in question as having been inserted therein by the National Assembly which was not elected on party basis. It is, therefore, very clear that the issues involved in the two pending civil appeals are different from the issues involved in the two matters in hand in which we are called upon to examine the Articles of the Constitution relating to the Judiciary.

 

12. Yet another objection raised was that the petitioner could not invoke Article. 184(3) of the Constitution as he has not been able to show whether any one, of his fundamental rights was infringed. To this objection reply of the petitioner was that his fundamental right as enunciated under Article 18 of the Constitution, which relates to freedom of trade, business or profession and provides that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business, is infringed. It is submitted by the petitioner that he is a practising lawyer and has a very vital interest in the Judicial setup which can function independently only when there is proper and total compliance of the Articles relating to the Judiciary and appointments are also made in accordance with the Constitutional scheme made thereunder. According to him, a lawyer cannot survive if the Judiciary is not independent. He has further submitted that he is governed by the Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder. He made reference to Rule 165 which provides that it is duty of advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of person s who are unsuitable for the Bench. Petitioner also made reference to Rule 175A which provides that nonobservance or violation of the cannons of professional conduct and etiquette mentioned in this chapter by an advocate shall be deemed to be professional misconduct making him liable for disciplinary action. We find sufficient force in this contention. It appears that the remedies under Articles 199 and 184 (3) available in a High Court and the Supreme Court respectively are concurrent in nature and question of locus standi is relevant in a High Court, but not in the Supreme Court when the jurisdiction is invoked under Article 184(3) of the Constitution. According to the petitioner, he went to the High Court and his writ petition was dismissed without deciding the questions of controversy. He filed the petition for leave to appeal against the impugned judgment and also filed the direct petition under Article 184(3) of the, Constitution praying for examination of the Articles relating to the Judiciary and in that connection has called in question some appointments in the Superior Judiciary. The learned Attorney ­General has submitted that since the controversy of the appointments challenged  by the petitioner before this Court has already been answered by the High Court in its judgment, this Court should refrain from going into the question of interpreting the Articles relating to the Judiciary, which will be an exercise of academic nature and that if such an exercise is undertaken then there is every apprehension of breach of the Doctrine of ‘Trichotomy of Powers’ in which it is very likely that this Court may go beyond the ambit of interpretation of the Constitution and may rewrite the Constitution. He further submitted that the decision of the Supreme Court of India reported as AIR 1991 SC 268 (Supreme Court AdvocatesonRecord Association v. Union of India) should not be followed on the ground of judicial restraint.

 

13. We are of the view that the petitioner has rightly invoked the jurisdiction of this Court under Article 184(3) of the Constitution and leave has rightly been granted in the other petition for the reason that in both the cases common question of interpretation of the Articles relating to the Judiciary are involved, which are of public importance. We are not impressed by the contention that interpretation of the Articles in these cases would be merely an exercise of academic nature. On the contrary, it can be said that this exercise has become very essential and necessary and would help a great deal in making the matters very clear by interpreting the relevant provisions of the Constitution relating to the Judiciary. It is held by this Court in the case of Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 that the interpretation of the Constitution is the prerogative as well as the duty of the superior Courts as envisaged in the Constitution and this interpretative function cannot be a mere academic exercise without relation to concrete dispute, either between a subject and subject or between a subject and the State. It is further held that cases of conflict between the supreme law of the Constitution and an enactment might come for adjudication before the Courts and in such cases, it would be plain duty of the superior Courts, as its preservers, protectors and defenders, to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provisions. The power of judicial review therefore must exit in Courts of the country in order that they may be enabled to interpret the Constitution in all its multifarious bearings on the life of the citizens in this country. It is also held that the Constitution ought to be interpreted as an organic whole giving due effect to its various parts . and trying to harmonise them, so as to make it an effective and efficacious instrument for the governance of the country. The abovernentioned judgment is noticed in the case of the State v. ZiaurRahman and others PLD 1973 SC 49 and it is held that the Supreme Court is the creature of the Constitution and does not claim any right to strike down any provision of the Constitution, but does claim right to interpret the Constitution, even if a provision in the Constitution is a provision seeking to oust the jurisdiction of the Court. This right to interpret the Constitution is not acquired de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or super  natural right but this judicial power is inherent in the court itself It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself.

 

14. In the case of Fauji Foundation v. Shamitur Rehman PLD. 1983 SC 456 distinction between “Judicial Power” and “Jurisdiction” is made and it is held by this Court that in our Constitution the word used is “Jurisdiction” which denotes authority for the Courts to exercise the judicial power as such power is inherent in the superior Courts tointerpret, construe and apply law as a result of X system of division of powers. The “Judicial Power” is not constitutionalised in the Courts as in American Constitution, although the Courts in Pakistan traditionally exercise the jurisdiction over the matters though not exclusive, which includes exercise of judicial power.

 

15. In support of the proposition that this Court should avoid interpretation of the Constitution as it might end up as an academic exercise when right of the petitioner to move the Court is doubtful, reliance was placed by the learned AttorneyGeneral on the minority view expressed in the case of Hakim Khan v. Government of Pakistan PLD 1992 SC 595. In that case question came up for consideration as to whether the power of the President under Article 45 of the Constitution to grant pardon, reprieve and respite and remit, suspend or commute any sentence passed by any Court, tribunal or other authority, was in conflict with Article 2A of the Constitution which was introduced as substantive part of the Constitution by P.O. No. 14 of 1985 providing that the Objectives Resolution would form part of the substantive provisions of the Constitution. Contention was raised whether the President could waive right of ‘Qisas’ under the Injunctions of Islam, which power could be exercised by ‘Walis’ of the deceased only. The Bench of this Court hearing the case composed of five Judges from whom one learned Judge gave dissenting view to the effect that the Court’s primary duty was to adjudicate by reference to positive law in a marater to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required for deciding the matters. It was further held by the learned Judge that the Court should not undertake examination of the, theoretical and academic questions, not should ordinarily look for anomalies in the Constitution with a view to suggest to the Parliament amendment or improvement in the Constitution. On the other hand, majority view of the four learned Judges is that Article 2A has been inserted in the Constitution with the intention that the Objectives Resolution should no longer be treated merely as a declaration but should enjoy the status of substantive provision and become equal in weight and status as other substantive provisions of the Constitution. In case any inconsistency was found to exist between the provisions of 1973 Constitution and those of the Objectives Resolution the same would be harmonised by the Courts in accordance with the wellestablished rules of interpretation of the Constitutional documents. It was further held that the Constitution was to be read as a whole and the Court was bound to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. Where any apparent repugnancy appeared to exist between its different provisions, the Court was to harmonise them, if possible. The case was remanded with the observation that if the High Court had considered that Article 45 of the Constitution contravened the Injunctions of Islam, then it should have brought the transgression to the notice of the Parliament to amend the relevant provision. It further appears from the judgment that the case had to be remanded in view of the contention that impugned judgment of the High Court was liable to interference on other grounds as well, and an observation was made that it was not necessary at all for the High Court to examine that case on the touchstone of Article 2A of the Constitution and that it had fallen into error in resting its entire judgment thereon.

 

16. Adverting to the’ case of Supreme Court AdvocatesonRecord Association v. Union of India (AIR 1994 SC 268) it would be necessary to say that initially in the case of S.P. Gupta v. President of India and others AIR 1982 SC 149 four points came up for consideration‑‑firstly, transfer of a Judge from one High Court to another, secondly, validity of nonextension of the term of the Additional Judges, thirdly, validity of the circular of the Law Minister and fourthly, appointments in the superior Judiciary with “consultation”. The Articles relating to the appointments in the Judiciary in the Indian Constitution were examined in detail with the main emphasis on the scope of the word “consultation”, and it was held that the appointments in the Judiciary were executive action and, therefore, so far consultation was concerned, the opinion of the Chief Justice of India had no primacy as against the other consultees. Subsequently, in the case of Subliesh Sharma v. Union of India AIR 1991 SC 631 fixation of Judgestrength whether justifiable or not alongwith corelated provision carried up for consideration before a Bench of three Judges, who were of the view that in the appointments in the Superior Judiciary recommendations of the Chief Justice of India had preponderant role and to say that power to appoint Judges vested in Executive was oversimplification of Constitutional process and that the word “consultation” was to be understood in the Constitutional scheme. The learned Judges felt inclined to hold that the opinion of the Chief Justice of India had primacy. In such circumstances not agreeing with the majority view in Gupta’s case request was made for constitution of a large Bench for consideration of the two questions referred, namely, position o the Chief Justice of India with reference to primacy and secondly, justiciability of fixation of Judge strength.

 

17. Finally, the points mentioned above came up for consideration in India in the case of Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994 SC 268 before a Bench of nine Judges in which by majority of seven to two it was held that in the process of consultation with regard to the appointment of Judges, opinion of the Chief Justice of India had primacy. The summary of the conclusions at page 442 of the report is reproduced as under;--

 

“(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the Constitution functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the Constitutional purpose, so that the occasion of primacy does not arise.

 

(2)    Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court and for transfer of Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.

 

(3)    In the event of conflicting opinions by the Constitutional functionaries, the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’, and formed in the manner indicated has primacy.

 

(4)    No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.

 

(5)    In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India We appointment should be made as a healthy convention.

 

(6)    Appointment to the office of the Chief Justice of India should be of the Seniormost Judge of the Supreme Court considered fit to hold the office.

 

(7)  The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices.

 

(8)  Consent of the transferred Judge/Chief Justice is not required for either  the first or any subsequent transfer from one High Court to another.

 

(9)    Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.

 

10) In making all appointments and transfers the norms indicated must be followed. However, the same do not confer any justiciable right in any one.

 

(11)  Only limited judicial review on the grounds specified earlier is available in matters of appointment and transfers.

 

(12) The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated.

 

(13) Fixation of Judgestrength in the High Courts is justiciable, but only to the extent and in the manner indicated.

 

(14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365: (AIR 1982 SC 149), in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matter of appointments and transfers, and the justiciability of these matters as well as in relation to Judgestrength does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the Constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us. “

 

18. Historically speaking, the IndoPak Subcontinent was ruled by the British until before the partition in 1947 and the system of governance was provided in the Government of India Act, 1935. Part IX of the Act related to the Judicature. Section 200 of the Act provided for establishment and constitution of the Federal Court of India consisting of a Chief Justice of India and such number of other Judges as His Majesty deemed necessary. The number of puisne Judges was fixed at not exceeding six. It was provided that every Judge of the Federal Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold the office until he attained the age of sixtyfive years. Other terms and conditions were also mentioned in the following sections. Section 202 of the. Act provided for appointment of Acting Chief Justice when the office, of the Chief Justice of India became vacant and for such period the GovernorGeneral could in his discretion appoint any other Judge of the Federal Court as Acting Chief Justice. Section 220 of the said Act envisaged constitution of the High Courts providing that every High Court shall be a CourtofRecord and shall, consist of a Chief Justice and such other Judges as His Majesty from time to time deemed it necessary to appoint. In the provisions mentioned above, it is apparent that there is no mention about , “ consultation “

 

19. The partition of the Subcontinent too k place in 1947 and Pakistan and India became two independent countries under the provisions of the Indian Independence Act, 1947. Under section 8(2) of the Act, both the dominions were allowed to be governed as nearly as may be in accordance with the Government of India Act, 1935 until their respective Constituent Assemblies framed the Constitutions. India was quick in making the Constitution. She framed the Constitution in the year 1949 and the bulk of it came into force on 26th January 1950 which day is referred to in the Constitution by the expression commencement of this Constitution”. Article 124 of the Indian Constitution provides for the establishment and constitution of the Supreme Court and sub­ Article (2) thereof envisages that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after I consultation’ with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Likewise, Article 217 of the Indian Constitution envisages that every Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor concerned, and in the case of appointment of a Judge, other than Chief Justice, the Chief Justice of the High Court concerned.

 

      20. Mr. Sharifuddin Pirzada, Senior Advocate Supreme Court as amicus curiae, tracing the history of the Judiciary in India, submitted that under the Indian High Courts Act, 1867, three chartered High Courts were established at Calcutta. Madras and Bombay providing therein appointments as Judges of Barristers of not less than fiveyears’ standing, members of the covenanted civil service, persons who had held judicial office and the pleaders with practice of not less than ten years. Section 3 of the Indian High Courts Act, 1911 empowered the GovernorGeneralinCouncil to appoint from time to time persons to act as Additional Judges of any High Court for such period not exceeding two years as may be required. The abovementioned laws continued to apply till the Government of India Act was promulgated in 1935 and came into force on 141937. The procedure with regard to the appointments as mentioned above continued in India till after the partition when an attempt was made by It, If Sardar Vallabhbhai Patel, the Home Minister, to control the Judiciary and in that connection memo. dated 4111947 was issued providing for procedure of appointment of High Court Judges under which the Chief Minister of a State, acting in “consultation” with the Home Minister of the State concerned, was to send his recommendations to the Home Minister in the Centre. When this memo. was circulated in the High Courts of India, there was resistance and consequently the Chief Justice of Madras High Court resigned from his office.  The Governor of the Province also protested and both were of the view that the above procedure would lead to political jobbery and would affect the independence of the Judiciary. A conference of the Chief Justices of India was held on. 2631948 and after thorough discussion a suggestion was made that every Judge of a High Court should be appointed by the President ‘by warrant under his hand and seal on the recommendations of the Chief Justice of India. This suggestion was not accepted. (Please see the article on the subject of Separation of Judiciary from Executive by Mr. Justice Ajmal Mian reported as PLD 1993 Journal 54 at 57).

 

20A. Sir TaJ Bahadur Sapni headed a committee, which was set up for preparation of Constitutional proposals. This committee recommended on the subject of Judiciary, inter alia, that the Chief Justice of India shall be appointed by the Head of the State and other Judges of the Supreme Court shall be appointed by the Head of the State in “consultation” with the Chief Justice of India. The Chief Justice of a High Court shall be appointed by the Head of the State in “consultation” with the Head of the Unit and the Chief Justice of India. Other Judges of a High Court shall be appointed by the Head of the State in “consultation” with the Head of the Unit, the Chief Justice of the High Court concerned and the Chief Justice of India. Paragraph 261 of the said report, which is very relevant and pertinent, is reproduced verbatim as under:‑‑‑

 

“Our main object in making these recommendations is to secure the absolute independence of the High Courts and to put them above party politics or influences. Without some such safeguards, it is not impossible that a Provincial Government may under political pressure affect prejudicially the strength of the High Court within its jurisdiction or the salary of its Judges. If it is urged that the High Court and the Government concerned will be more or less interested parties in the matter, the intervention of the Supreme Court and of the Head of the State would rule out all possibility of the exercise of political or party influences. The imposition of these conditions may, on a superficial view, seem to be inconsistent with the theoretical autonomy of the Provinces, but, in our opinion, the independence of the High Court and of the judiciary generally is of supreme importance for the satisfactory working of the Constitution and nothing can be more detrimental to the wellbeing of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province.”

 

21 The Committee considered in detail the status and functions of the Head of the State as was to be envisaged in the new Governmental setup after the independence of India. Paragraph 288 of the said report reflects the thinking keeping in view the attending circumstances on the basis of which recommendations were to be made to identify the exalted position of the Headof the State with powers and status proposed to be given to him vesting him with power to act in exceptional cases to use his discretion without advice of the cabinet in order to avoid political or communal graft or taking initiative in the national interest.

 

22. On the Draft Constitution of India, views were obtained from the Federal Court and the Chief Justices of the High Courts in March 1948 in connection with which a conference was held and detailed discussion took place on the subject ot the independence of the Judiciary and the mode of the appointments of the Judges keeping in view the tendency growing up to detract from the status and dignity of the Judiciary and to whittle down their powers, rights and authority, which were to be checked. It was found that the procedure adopted in the appointment of Judges after the 15th August, 1947 did not ensure appointments being made purely on merit without political communal and party considerations being imported into the matter. A suggestion was made that the Chief Justice should send his recommendations to the President who after consultation” with the Governor should make the appointment with .concurrence” of the Chief Justice of India. The “concurrence” was justified on the ground that it would provide safeguards against the political and party pressures at the highest level being brought to bear in the matter. This suggestion was. not accepted and finally in the Constitution the Articles relating to the Judiciary provided for appointments to be made by the President after “consultation” with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary and in the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.

 

23. After promulgation of the Indian; Constitution, appointments in the Judiciary continued to be made “after consultation’ with the consultees mentioned therein. But complaints were being made that through the process of .consultation” it was not possible to exclude the political influence from such appointments. In the case of Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994 SC 268 with relevant portions at page 315 the appointments of the Judges have been commented upon in paragraphs 64 and 65, which are reproduced as under:‑‑‑

 

The above fallacious principle receives a fitting reply from the 14th Report of the Law Commission 73 in which the following opinion of a High Court Judge is quoted:

 

‘If the State Ministry (Minister in the State Government) continues to have a powerful voice in the matter, in my opinion, in ten years’ time or so, when the last of the Judges appointed under the old system will have disappeared, the independence of the Judiciary will have disappeared and the High Courts will be filled with the Judges who owe their appointments to politicians.’

 

65. Shri M. C. Setalvad, who was most distinguished jurist and AttorneyGeneral and known for his impeccable integrity and sturdy independence and who presided over the 14th Law Commission had painfully stated in his Report that the Commission, during its visits to all the High Court Centres, heard ‘bitter and revealing criticism about the appointment of Judges’ and that ‘the almost universal chorus of comment is that the selections are unsatisfactory and that they have been inducted by executive influence.”

 

24. In the judgment of Supreme Court of India mentioned above in the preceding paragraph, scope of “consultation” is defined by one of the learned Judges sharing the majority view, per Kuldip Singh, J., which is reproduced hereunder in his own words in the manner which is lucid and selfexplanatory at pages 272 and 273 of the report:‑‑‑

 

  ...... The President makes appointments to various (nonelective) Constitutional offices besides appointing the High Court and Supreme Court Judges. No consultation is provided for with regard to the Constitutional offices‑‑except judicial offices. That does not and cannot mean that these appointments are made without consultation. But the specific provisions for consultation with regard to the judicial offices under the Constitution, clearly indicate that the said consultation is different in nature and meaning than the consultation as ordinarily understood. The powers and functioning of the three wings of the Government have been precisely defined and demarcated under the Constitution. Independence of Judiciary is the basic feature of the Constitution. The Judiciary is separate and the Executive has no concern with the daytoday ftinctioning of the Judiciary. The persons to be selected for appointment to judicial offices are only those who are functioning within the judicial spheres and are known to the Judges of the superior Courts. The executive can have no knowledge about their legal acumen and suitability for appointment to the high judicial offices.  In the process of consultation the expertise, to pickup the right person for appointment, is only with the Judiciary. The ‘consultation , therefore, is between a layman (the Executive) and a specialist (the Judiciary). It goes without saying that the advice of the specialist has a binding effect. If the true purpose of consulting the Judiciary is to enable the appointments to be made of persons not merely qualified to be Judges, but also those who would be the most appropriate to be appointed then the said purpose would be defeated if the appointing authority is left free to take its ‘own final’ decision by ignoring the advice of the Judiciary. The framers of the Constitution placed a limitation on the power of the Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior ‘consultation’ with the superior Judiciary is a logical consequence of having an ‘independent Judiciary’ as a basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation ‘with the Judiciary is defeated. The Executive is therefore bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Arts. 124(2) and 217(l) of the Constitution.”

 

25. The same word “consultation” is used in the Constitution of the Islamic Republic of Pakistan promulgated in 1973 in the Articles relating to the appointments of the Judges in the superior Judiciary. It is of pivotal importance to give meaning of this word “consultation’ and to define its scope which is indisputably a matter of public importance the relevant historical background is that Pakistan got independence on 14th August, 1947 under the provisions of the Indian Independence Act, 1947 as stated above. QuaideAzam Muhammad Ali Jinnah became the first GovernorGeneral and the President of the constituent Assembly of Pakistan.’ India was fortunate to have inherited the Federal Government. Since Pakistan was a newly born country, it had to suffer several setbacks and shortcomings. Pakistan did not have the readymade Federal Court. A High Court was established in East Pakistan on the pattern of Calcutta High Court. QuaideAzam was anxious to set up the Federal Court which was established on 23rd February, 1948 by G.G.O. No.3 called the Federal Court of Pakistan Order, 1948. It was provided under Article 4 of the said Order that the Federal Court of Pakistan shall be deemed to have been established as from the appointed day in accordance with the provisions contained in that behalf in the Government of India Act, 1935 as adapted by the Pakistan (Provisional Constitution) Order, 1947. Mr. Justice Hidayatullah of India was invited on two occasions to accept appointment as Chief Justice of the Federal Court of Pakistan  but he declined. Sir Abdur rashid at that. Time was Chief Justice of the Lahore High Court and Justice H.B. Tayab Jee was Chief Justice of the Chief Court of Sindh. The former was made the Chief Justice of the Federal Court of Pakistan. The jurisdiction of the Privy Council in respect of appeals and petitions from Pakistan was abolished by the Privy Council (Abolition of Jurisdiction) Act, 1950. Pakistan succeeded in framing the Constitution in 1956 called as the Constitution of the Islamic Republic of Pakistan, 1956. Three chapters of Part IX of the Constitution from Articles 148 to 178 covered the subject of the Judiciary providing for setting up a Supreme Court at its apex and High Courts in the Provinces. ‘Article 148 envisaged setting up of the Supreme Court of Pakistan consisting of a Chief Justice to be known as the Chief Justice of Pakistan and not more than six other Judges. Article 149 provided that the Chief Justice of Pakistan shall be appointed by the President and the other Judges of the Supreme Court shall be appointed after “consultation” with the Chief Justice. SubArticle (2) thereof required that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of Pakistan and (a) has been for atleast five years a Judge of aHigh Court or two or more High Courts in succession; or (b) has been for at ‘ least fifteen years an advocate or a pleader of a High Court or of two or more High Courts. Likewise, Article 165 envisaged establishment of a High Court for each province consisting of a Chief Justice and such number of other Judges as the President may determine. Article 166 required that every Judge of a High Court shall be appointed by the President after ‘consultation” with the Chief Justice of Pakistan, the Governor of the Province and, if the appointment is not that of the Chief Justice, the Chief Justice of the High Court,of that province. Article 167 prescribed the qualifications of High Court Judges. Article 168 provided for temporary ‘appointment of the Chief Justices and the Judges of the High Courts and Article 169 covered the subject of removal of the Judges of the High Courts.

 

26. It is clear that in the Articles relating to the Judiciary in the Constitution, the word “consultation” is used as against the word “concurrence’ suggested in the Sapru Report, but in this context it is necessary to. refer to the speech made by late 11 Chundrigar, the then Law Minister, on the floor of the Constituent Assembly, relevant portion of which is reproduced as under‑‑,‑‑‑

 

.. Then the Supreme Court Judges and the High Court Judges are not removable once they are appointed, except by following the procedure: prescribed therein. This would, in my humble opinion, completely safeguard the independence of the Judiciary and that is a matter which will really secure the rights of the people. Sir, the independence of the Judiciary is a principle very dear to the people of this country, who believe that they receive justice from, the Courts of this country and that their rights are safe in the hands of the Judges. The impartiality of Judges is one aspect of the nature of the Judge, of which another is independence. A Judge who is not independent cannot be impartial. The provisions in the Bill are intended to ensure the independence of the Judges and to preserve it in future as it is preserved at present. We have at the: outset made provisions in the Constitution which make the interpretation of the Constitution by the Supreme Court final. We cannot give greater assurances to say that justice is given in Pakistan in a real and unpolluted form .......

 

27. The languageused in the relevant Articles pertaining to the Judiciary in both the Constitutions of India and Pakistan is same with use of the word “consultation”. In Pakistan, the Constitution of 1956 was abrogated and Martial Law was imposed on 7th October 1958 after which the Laws (Continuance in Force) Order, 1958 was promulgated providing in Article 2 that all the Courts in existence before the proclamation shall continue to function subject further to the provisions of the said Order in their powers and jurisdictions.

 

28. It is worthmentioning that the Constitution of 1956, which was abrogated, contemplated the Parliamentary form of Government. The Chief Martial Law Administrator later became the President of Pakistan after taking the mandate from the people had himself made and enacted the Constitution of Islamic Republic of Pakistan in 1962 which envisaged the Presidential form of Government.

 

29. In the 1962 Constitution, Chapter X of Part III related to the Supreme Court of Pakistan covering Articles 49 to 65. Articles 91 to 102 covered the High Courts. For the appointments of the Judges in the Supreme Court and the High Courts including the Chief Justice, the language used was almost same as that of 1956 Constitution and the process of appointment was based upon “consultation”. One thing very peculiar about the Constitution of 1962 was that it envisaged the Presidential form of Government, therefore, there was no role for the Prime Minister to advise the President. Before promulgation of 1962 Constitution, a Law Commission was set up which made suggestions on the subject of the appointment of the Judges. The procedure suggested by the Law Commission in respectof the appointments to the Supreme Court was that the recommendations for judgeship of that Court had to be sent by the Chief Justice in “consultation” with his colleagues and that as a matter of convention the President had to accept the recommendations. In respect of the Chief Justice of Pakistan, it was suggested that the recommendation should be made by the retiring Chief Justice and if on account of unforeseen circumstances no such recommendation could be made, the President should select the Chief Justice out of the Supreme Court Judges. The Report of the Law Commission used the word .recommendation” which was not used in the relevant provisions of the 1962 Constitution in respect of appointments of Judges in the superior Judiciary.

 

 30. While the 1962 Constitution was in force and Field Marshal Muhammad Ayub Khan was President at the Head of the Presidential form of Government, appointments of the Judges in the superior Judiciary were being made on the basis of “consultation”. An instance is worth mentioning which is to the effect that Justice Syed Mahboob Murshid, the then Chief Justice of the East Pakistan High Court, recommended the name of Mr. Tayyabuddin Talukdar for appointment as the Judge of the High Court and for some reasons that recommendation was not supported by Mr. Justice A.R. Cornelius, the then Chief Justice of Pakistan. The President agreeing with the Chief Justice of Pakistan did not make the appointment and for that reason Justice Murshid later resigned. This shows as to how much, weight used to be given to the .consultation” in respect of the appointment of the Judges which were being made by the President in the Presidential form of Government. The Constitution of 1962 was abrogated on 25th March, 1969 and Martial Law was again imposed in the country.

 

31. Before the framing of the 1973 Constitution, there was Interim Constitution of 1972. The Constitution Bill was introduced in the National Assembly of Pakistan in which the chapter relating to the Judiciary shows that a proposal was made that the Chief Justice of Pakistan shall be appointed by the President and each of the other Judges shall be appointed by the President out of a panel of three names recommended by the Chief Justice. For appointments in the High Courts, the proposal was that the Chief Justice of the High Court shall be appointed by the President after “consultation” with. the Chief Justice of Pakistan and each one of the other Judges shall he appointed by the President out of a panel of three names recommended by the Chief Justice of Pakistan which shall include at least two names recommended by the Chief Justice of the High Court in “consultation” with the Governor of the Province. The chapter relating to the appointments in the Judiciary in the Draft Constitution Bill was sent to the Judges of the Supreme Court for consideration and advice. A Full Court Meeting took place on 1911973 which was presided over by Chief Justice HamoodurRehman After a detailed consideration, the Judges of the Supreme justice Court in the meeting did not support the idea of recommending a panel of three names by Chief Justice and instead suggested that the Chief Justice of Pakistan may be appointed by the President and each of the other Judges be appointed by the President on the recommendation of the Chief Justice. In the High Courts idea of a panel of names was opposed and suggestion was made that “consultation’ may be retained, but “consultation” with the Governor of the Province be deleted in view of the emphasis in the Draft Constitution on the greater independence of the Judiciary. It appears that the suggestions of the Supreme Court on the Draft Constitution Bill were partly accepted inasmuch as the requirement of a panel of the Judges was dropped, “recommendation” was replaced with “consultation’ and the proposal about dispensing with the consultation” of the Governor was not accepted.

 

32. The idea to mention all these facts about the provisions of the Draft Constitution Bill of 1973 Constitution and consideration of the Chapter relating to the Judiciary in the Draft Bill by the Judges of the Supreme Court is to spotlight as to how the efforts were made to use or not to use the word “consultation” within the compass of the independence of the Judiciary to make the appointments of the Judges as free as possible to be made with as great say as possible of the Chief Justices. In that light one has to see that even the endeavour was made to use the word “recommendation” instead of consultation to make it more weighty so that the opinion of the Chief Justices should not easily be rejected.

 

33. At this stage, it would be pertinent to look at the Constitution of the Islamic Republic of Pakistan, 1973 very minutely to find out as to what status does it provide for the Judiciary and how far it intended to make the judiciary independent within the scheme and the four comers of the Constitution. In the preamble to the Constitution, the Objectives Resolution is reproduced which enunciates that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed and independence of the Judiciary fully secured, it also provides that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out by the Holy Qur’an and Sunnah. Article 2A of the Constitution envisages that the principles and provisions set out in the Objectives Resolution are hereby made substantive part of the Constitution and shall have effect accordingly. Article 2 of the present Constitution commands that Islam shall be the State religion of Pakistan. Part IX of the Constitution contains the Islamic provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. What is very important in this context is the fact that Article 2A was inserted in the Constitution by P.O. No.14 of 1985 and made the substantive part of the Constitution which blends the Constitution with the spirit of Islam .

 

34. Contention was raised before us that “consultation’ of the Chief Justice of Pakistan being the Head of the Judiciary carries force of ‘Ijma’ and, therefore, has binding force. In support of this proposition reliance was placed on Verse 159 of Surat AlImran which reads as under:‑‑‑

 

“It was by the mercy of Allah that thou was lenient with them (0 Muhammad), for it thou had been stem and fierce of heart they would have dispersed from round about thee. So pardon them and consult with them upon the conduct of affairs. And when thou art affairs. And when thou art resolved, then put thy trust in Allah. Lo’ Allah loveth those who put their trust (in Him).”

 

35. In the book titled written by Moulana Riasat Ali Sahib Bijnouri at page 240 it is stated as under:

 

36. The judiciary was institutionalised and its independence was maintained under the office of the Chief Justice and Hazrat Umar saw to it that the Qazis would not be under the control of the Governors. After the office of the Chief Justice was institutionalised, he was competent to appoint the subordinate Judges (see Tareekhul Islam by Dr. Hassan Ibrahim Hassan). At page 292 it is stated by the author which is translated as under:‑‑‑

 

 

37. Moulana Abu’al Ala Moudoodi in his book “ KHILAFAT-O-MALOKIAT “has stated at page 282 on the subject of Qazis translation of which is as under:‑‑‑

 

“During the era of HaroonurRashid, his influence gradually got hold on Khalifa and went to that extent that he was made the Chief Justice of the SultinateAbasia. For the first time this post was created in a Muslim State. Before that no person was appointed as Chief Justice. Then on this post Imam Abu Yousuf was appointed. Unlike modem times, he was not only the Chief Justice but also performed functions of the Minister of Law and decided cases and also had power to appoint Qazis. He also gave legal advice in the internal and external affairs of the State.

 

38. This system of Judicial set up was adopted by the Mughal Emperors as is mentioned in the book titled as it is mentioned at page 49 of this book that the Chief Justice after his appointment had right and power to appoint other subordinate Qazis.

 

39. In the famous letter written by Hazrat Ali to Malik Ashtar, Governor of Egypt containing advice and directions there is a paragraph about appointment of Qazis which is reproduced as under:‑‑‑

 

“When appointing Qadis, select holy and pious persons for the post. They should neither be greedy nor make errors in their judgments. in no way should they deviate from truth deliberately. They should not become arrogant when flattered. But, alas, such persons are few. Supervise your officials, who should be appointed on merit and merit alone. Appoint these officials from those families who accepted Islam the earliest for those are the people who attach more importance to the next world than not this. Give them handsome pay so that they may not be beguiled into monetary temptations. Have a good system of spies to observe their activities. And should any of these officials be found guilty of bribery, misappropriation of Government funds or any similar offence, punish them immediately. They should be suspended, disgraced and dismissed.

 

40. It is stated in Tafseer IbneKaseer, Volume 1, ‘which is translated in Urdu as under:‑‑‑

 

“Hazrat Ali Bin Abu Talib is stated to have asked a question from the Prophet Muhammad (p.b.u.h.) as to what was the meaning of the word : used in the Holy Qur’an and he replied that AlAzam means to consult and  upon”.

 

41. Allama Shabir Ahmed Usmani in his ‘Tafseer’ has mentioned at page 92 as under:‑‑‑

 

42. Moulana Muhammad HafezurRehman Sewharvi in his book ‘Qasasuul Quran’, Volume 4 at page 480 has stated as under:‑‑‑

43. in the book ‘Law in the Middle East’ edited by Majid Khadduri and Herbert, J. Liebesny in the chapter on the subject of “Origin and Development of Islamic Law” at page 52 it is stated as under:‑‑‑

 

“Thus the appointment to the position of Qadi alQudat (Chief Qadi) entails, without its being expressly mentioned, the right to appoint Na’ibs; for the Qadi alQudat is the head of the judicial administration with the right to appoint and dismiss Judges.”

 

The above paragraph is taken from the book ‘Ali the Superman’ from the Chapter No.XXV ‘Literary Achievements’ at page 435.

 

44. In the book “ Islam Main Mashwara Ki Ahmiat “ by Moulana HabiburRehman Usmani and Moulana Mufti Muhammad Shafi, Sahib published by Idarae-­Islamiat, Lahore at page 47 it appears that Hazrat Ali used to state that once he asked from the Prophet Muhammad (p.b.u.h.) as to what would happen if one was confronted with a matter about which there was no direction in the Holy Qur’an and the Prophet also had not been heard about it before, the Prophet replied that he would gather the righteous people from the ‘Ummat’ and consult them. No one should decide on the advice of one alone”.

 

This paragraph is taken from the book, ‘Ali the Superman’ from Chapter No.XXV ‘Literary Achievements at page 435.

 

45. In the book titled “ KHILAFAT-o-MALOKIAT”. which is authored by Syed Abul A’la Moudoodi at page 95 on the subject of ‘Supremacy of Law’ it is mentioned that the Caliphs did not consider themselves to be above the law, but considered themselves to be equal with the common citizens in the eye’s of law. Even if the Qazis were appointed by the Head of the State, but after such appointment Qazis became independent in giving decisions against the Head of State as they could give in respect of ordinary citizens. One instance is quoted in which Hazrat Ali saw a Christian in the ‘bazar’ who was selling an armour belonging to Hazrat Ali. The latter did not exercise his authority to snatch the armour but lodged a complaint with the Qazi who gave decision against the Amirul Moumineen as he could not produce satisfactory evidence. Another instance often quoted is that once Hazrat Ali appeared in the Court of a Qazi in a dispute with another person and Qazi stood up from his seat in different to Hazrat Ali which was deprecated by the latter as conduct highly improper and inconsistent with the independence of the Judiciary.

 

46. The purpose of quoting from the Islamic books is to show as to how much importance is given in Islam to “consultation” and how much respect and binding force is given to the opinion of the Qazi or Judge and very wide powers given to the Chief Justice including all appointments of subordinate Judges under him.

 

47. The word “consultation” used in the Constitutional provisions relating to the Judiciary is to be interpreted in the light of the exalted position of the Judiciary as envisaged in Islam as stated above, and also in the light of the several provisions in the Constitution which relate to the Judiciary guaranteeing its independence. An attempt has been made to trace the history of the Judiciary in the Constitutional and the legal documents which governed India before the partition.

 

48. Since both India and Pakistan were one country before 1947, they inherited more or less the same type of problems and difficulties in their judicial systems with which we are concerned at present. Both the countries have made provisions in their respective Constitutions under which the judicial systems are set up and governed and methodology is provided for appointment of Judges. The pivotal point in both the judicial systems in the process of appointments is the word “consultation” which is categorically defined in India in the famous case of Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994 SC 268 giving primacy to the opinion of the Chief Justice of India. In the Constitution of 1973, by which Pakistan is being governed, in the chapter relating to the Judiciary and in the process of appointments, the same word “consultation” is used.

 

49. On the question of “consultation”, the learned AttorneyGeneral for Pakistan took up the plea that this was not the point in issue in the appeal because the High Court held that the “consultation” had taken place, hence, it was not open to question and this Court may not enter into an academic exercise. We are of the view that ‘consultation’ is a pivotal issue in these cases in which the provisions in the Constitution relating to the Judiciary are being interpreted particularly from the point of view of the independence of the Judiciary. Hence this issue cannot be avoided on hypertechnical grounds. In fact, objection was raised against the maintainability of the petition and the appeal along side another objection that interpretation of the Articles in the Constitution would end in an academic exercise, to which we have adverted to in detail in paragraphs 9 to 15.

 

50. The learned AttorneyGeneral further contended that the word ,consultation” is used in the relevant Articles of the Constitution with specific purpose and has been construed in the past to mean that there should be participatory and meaningful “consultation” but the final say in the appointments is with the Federal Government. It was further argued that the appointment of Judges is an executive action and that in all the countries of the world appointments are made by the executive and a Judge can always act independently after administration of Oath particularly when his salary is fixed and security of tenure is assured. The idea behind this contention was that in the process of “consultation” when final say is with the Federal Government and appointment is questioned on the ground of having been made on political considerations, then such shortcoming is rectified after the oath is administered to the Judge who can act independently without being influenced by the past and in support reliance has been placed on the case of Malik Hamid Sarfraz v. Federation of Pakistan and others PLD 1979 SC 991 in which it is held that the Supreme Court Judges are bound by their oath of office to do justice without fear or favour in spite of the fact whether the person appearing before the Court combines in himself the office of AttorneyGeneral and the Law Minister or any other offices of the realm.

 

51. It will suffice to say that in the reported case objections were raised, inter alia, about the composition of the Bench hearing the matter and the fact that Mr. Shariftiddin Pirzada, the AttorneyGeneral, had appeared in the case, and for that reason apprehension was expressed that the Bench would not be able to do justice. Exception was taken by the Court to such insinuation to the effect that the Judges of the Supreme Court would not be able to do justice in the matter as either they would feel beholden to the AttorneyGeneral combining in himself the Office of the Law Minister for their appointment, or they would feel intimidated in his presence because of his power to initiate disciplinary proceedings against them as highly inappropriate and deprecable. The facts of the reported case were entirely different and do not apply to the point in issue in these cases to the extent of defining the import or ambit of “consultation”. We are trying to find out as to whether the word “consultation” is to be interpreted and construed as contended by the learned AttorneyGeneral to mean meaningful consultation with last word with the Federal Government or it should be interpreted more liberally to give effective say to the Chief Justices who are named as the consultees in the process of appointments as envisaged in the Constitution.

 

52. The learned AttorneyGeneral further argued that under Article 193 of our Constitution ‘consultation’ is required with three consultees namely, the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court concerned, hence all these consultees are equal and the CJP being first among the equals is not entitled to a right to exercise veto over the opinions of the other consultees. According to him, the word “consultation” in Article 193 of the Constitution came’ up for consideration in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and others PLD 1989 Kar. 404 in which it has been held that the “consultation” with the Chief Justice of Pakistan and the Chief justice of the High Court concerned by the President should be meaningful as observed in Indian Supreme Court cases.

 

53. It was further submitted by him that the word “consultation” is not defined in the judgment of the High Court, mentioned above, and what is stated only is that it should be meaningful, hence, in these cases this Court also should not give any further and specific definition of the word “consultation” which word is known and understood by the Constitution-makers as it has been used in other Articles of the Constitution as well. Article 72(l) provides that the President after “consultation” with the Speaker of National Assembly and the Chairman may make rules. Article 160 provides for setting up of the National Finance Commission giving powers to the President to appoint persons after “consultation” with the Governors of the Provinces, Article 177(l) provides that the Chief Justice of Pakistan shall be appointed by the President and each of the other Judges shall be appointed by the President after “consultation” with the Chief Justice. Article 193(1) provides that the President shall appoint a Judge of the High Court after,  “consultation” with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court concerned (except where appointment is that of the Chief Justice). Article 200(l) provides for transfer of High Court Judges and stipulates that no such, Judge shall be transferred except with his consent and after “consultation” by the President with the Chief Justice of Pakistan and the Chief Justices of both the High Courts. Article 203-C(4) provides for appointment of Judges in the Federal Court and it is stated in the proviso that a Judge of the High Court can be appointed in the Federal Shariat Court for two years without, his consent’ after ‘consultation’ by the President with the Chief Justice of the High Court. Article 203-F(3)(b) where it is stated ………… from out of the panel of Ulema drawn by the President in “consultation” with the Chief Justice. Article 218 relates to the Election Commission and in sub-Article (2)(b) it is stated that two members each of whom shall be a Judge of the High Court, appointed by the President after “consultation” with the Chief Justice of the High Court concerned and with the Commissioner, Article 235(l) relates to proclamation in case of financial emergency and provides that the President after “consultation” with the Governors of the Provinces or, as the case may be, the Governor of the Province concerned by proclamation made by declaration to that effect. The learned Attorney-General argued that in the provisions mentioned above the President has power to consult and accept the opinion or not and opinion of such consultees is not binding on the President.

 

54. Mr. Yahya Bakhtiar, learned Advocate Supreme Court appearing for the Federal Government in the direct petition, painstakingly took us through the whole Constitutional history of Pakistan in the light of the Martial Laws imposed and in consequence how this Court interpreted the relevant provisions in the celebrated cases reported as the State v. Dosso PLD 1958 SC (Pak.) 533, Asma Jilani v. Government of Punjab and another PLD 1972 SC 139 and Begum. Nusrat Bhutto v. Chief of Army Staff etc. PLD. 1977 SC 657.

 

55. The learned counsel contended that in the firstmentioned case it was held that the successful revolution brought about by the Martial Law gave a new order which finding was set aside in the secondnamed case in which it was held that imposition of Martial Law amounted to usurpation of the power and this finding was nullified in Nusrat Bhutto’s case. He further stated P.C.O. of 1981 was the first stab in the back of the Judiciary which validated whatever done by the Martial Law authorities. From the oath of Judges the word “Constitution” was omitted and after revival of the Constitution, Eighth Amendment was made which changed the shape of the Constitution, inter alia, providing for setting up of the Federal Shariat Court and imposing curbs on the independence of the Judiciary.

 

56. On the subject of appointments, Mr. Yahya Bakhtiar stated that the three categories are envisaged in Article 193 of the Constitution firstly, advocates, secondly, members of civil service, and thirdly members of judicial service. According to him, requirement for an advocate is that he should have ten years’ standing which need not be actual practice as Further, the advocate should be a man of integrity and may not know law, but may be upright in character.

 

57. On the subject of “consultation”, Mr. Yahya Bakhtiar stated that it is not a formality and that “consultation” should be effective. Serious consideration is to be given to the opinion of all the consultees. Invariably, the opinion of the Chief Justice is accepted unless the recommendation is made for appointment of A relative or friend in which case it can be rejected. He further stated that the Federal Government should give reasons if the recommendation of the CJP is not accepted. If the opinion of the CJP is rejected he may be shown the reasons assigned by the Federal Government for such rejection. But the CJP can sit complacently with hands off the appointment for the reason that he has done his duty and has nothing to worry about and if any criticism is to be made in respect of such appointment, it would be in the Parliament to which the President and Prime Minister are answerable. Under Article 48 the advice of the Prime Minister is binding on the President and under’ subArticle (4) such advice cannot be enquired into by the Court. Mr. Yahya Bakhtiar further stated that this Court can interpret the word “consultation” but should not replace it with “consent” or “concurrence”. According to him, the words “consent” and “consultation” are known to the Constitutionmakers and have been used in different Articles. having their proper import which is not the same. He further stated that the Judges after appointment take oath and can become independent as they have security of salary and tenure. He quoted from ‘Islamic Jurisprudence’ by. C.G. Weeramantry on the subject of ‘The Notion of the Supremacy of the Law’ (at page 79) at relevant portion which is reproduced as under:‑‑‑

 

“Judges were enjoined by the Qur’an to follow the law and because this was a Qur’anic duty no ruler could interfere. ‘So judke between them by that which Allah has revealed’ (V:49), and Whose judgeth not by that which Allah hath, revealed, such are wrongdoers’.” (V:45).

 

58. On the subject of “consultation” noteworthy factor from the arguments of Mr. Yahya Bakhtiar is that, according to him, “consultation” is not a formality but it should be effective and serious consideration should be given to all the consultees and if the recommendation of the CJP is not accepted, Federal Government should give reasons.

 

59. Mr. Aitzaz Ahsan, Senior Advocate Supreme Court appearing for the Federal Government in Civil Appeal No.805 of 1995, submitted before us that there is separation of powers in the Constitution with checks and balances enmeshed therein. The Legislature is directly responsible to the people through the Legislature. The Judiciary is the third pillar of the State and is separated and saved from answerability as it is intended to be independent. The Judges perform no executive functions and their security of tenure, emoluments, and privileges are guaranteed and further they are immune from political criticism, The conduct of the Judges cannot be debated in the Parliament, With such reasons in the background in the process of appointment of Judges as envisaged in the Constitution, final say in the appointment is given to the Federal Government as it is considered as an executive action, since Executive is the final authority, no reasons are to be assigned by, them for final decision in the process of 1, consultation” on the basis of which the appointment is made. In support of the proposition he has cited from the Book “Comparing Constitutions” by S.& finer Vernon Bogdarior and Bernard Rudden, Subheading of “Judicial Independence” (at page 88). it is stated therein that in many democracies including Britain_ France and Germany, Judges are appointed by the Executive Branch and in USA such appointments are made by the President but with the consent of the Senate. Hence in all these countries, appointments are in the hands of political charged body, In such circumstances, how can it be said that independence of the Judiciary is secured. Answer to the question is given which is to the effect that a Judge may be appointed by the Executive, he or she shall not, or not easily be removed by it. He has also cited ‘Constitutional Dialogues’ by Louis Fisher and at page 135) of the said book referred us to the subject of the “Appointment Process”. Relevant paragraph from that page is reproduced as under:‑‑‑

 

‘Subjecting Federal Judges to the Presidential nomination and Senate confirmation creates an intensely political process. Appointments to the Supreme Court ‘are highly political appointments by the nation’s chief political figure to a highly political body’. From an early date, Senators wielded considerable power in choosing nominees for federal judgeship, Members of the Supreme Court (especially Chief Justice Taft) have lobbied vigorously for their candidates. Other sectors of Government ,are active. An unusually candid Judge remarked: ‘A Judge is a lawyer who knew a Governor’ ‘ Private organizations participate. The American Bar Association (ABA) organized in 1878, plays a key role. Its influence increased during the Truman administration when it established a special committee to judge the professional qualifications of candidates. Acting on names submitted by the AttorneyGeneral, the committee informs the Chairman of the Senate Judiciary Committee whether a ‘Nominee to the Supreme Court fits the category of ‘well qualified’, ‘not opposed’, or ‘not qualified’. The ABA categories for the lower Courts are ‘exceptionally well qualified’, ‘well qualified’, or not qualified’.

 

60. The gist of the arguments of the learned counsel is that appointments of the Judges are to be made by the Federal Government and even if the word “consultation” is used in the relevant provisions of the Constitution, weight can be given to the opinion of the consultees, but the last say in the matter is with the Federal Government and the word “consultation” cannot be given a different meaning of “consent”. He further stated that the political Governments come with politicalthinkings and do appoint Judges, who support the thinking of the party and such appointments are made in different countries of the world who are prominently known for successful democracy and rule of law and independence of the Judiciary in spite of the fact that the appointments of the Judges are made by the Executive Branch of the Government. He has cited “Encyclopaedia of the American Constitution” by Leonard W. Levy in which it is stated at page 66 that the discretion of the Executive is to be exercised until the appointment has been ‘made. But having once made the appointment, his power over the office is terminated as by law the officer is not removable by him. The right to the office is then in the person appointed and he has absolute and unconditional power of accepting or rejecting it.

 

61. With regard to the judgment from the Indian jurisdiction in the case of Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994 SC 268, Mr. Aitzaz Ahsan stated that in the process of appointment of the Judges advice of CH has primacy as there is convention. He further stated that as per figures mentioned in the reported judgment, out of 547 proposals, 540 were accepted and only seven were rejected by the President. Hence, if in the normal course and in the majority cases, the opinion of the CH had been accepted and in very few cases rejected, then on that account they should not have any grouse. He further submitted that reliance should not have been placed on the convention, which was not enforceable in law. In nutshell, with regard to the import of the word “consultation”, the learned counsel submitted that appointing process is an Executive action which does not give Judges role of appointing themselves and in the Constitutional scheme term “consultation” cannot be read as “consent”. In the final analysis, the learned counsel stated that opinion of CJP should be given due weight and normally it should not be ignored but final responsibility or authority in respect of appointment lies with the President on the advice of the Prime Minister. It was further stated by the learned counsel that the “consultation” has to be meaningful and substantive and there should be interaction but “consultation” has no status of “consensus” and is not binding on the Federal Government.

 

62. Mr. Fakhruddin G. Ebrahim., learned Senior Advocate Supreme Court appearing as amicus curiae, stated before the Court that the independence of the Judiciary is to be found within the four comers of the Constitution and there is no absolute independence. It is the duty and function of the Judiciary to interpret the Constitution and the Constitution is what the Judges say. It is a very heavy responsibility on the shoulders of the Judiciary and it is. expected that the Judiciary would act, during the process of interpretation, with great restraint, courage and compassion and not rewrite the Constitution. The people must have faith in the Judiciary and burden of the independence of the Judiciary is to be shared by the Parliament, Executive, Press and the Members of the Bar. The learned counsel traced the history of the Constitution of 1973 and covered all the amendments made therein right up to the Twelfth Amendment and also dilated upon the various Articles of the Constitution relating to the Judiciary. He highlighted the Martial Laws imposed in the country and in their wake how attempts were made to erode the authority and independence of the Judiciary. He dilated upon the subject of the independence of the Judiciary and the relevant caselaw. He also commented upon the caselaw on the subject from the Indian jurisdiction and finally submitted before us that the “consultation” contemplated in the Articles of the Constitution ;elating to the appointment of the Judges is intended to be effective., meaningful, consultative, purposive, leaving no room for complaint, arbitrariness or unfair play. He concluded his argument on the question of consultation by saying firstly, that the proposal for appointment must emanate from the Chief Justice of the High Court; secondly, the Government has final say in the matter in not appointing the person recommended by the Chief Justice of the High Court and the Chief Justice of Pakistan; and thirdly, the Government should not appoint a person not recommended by the Chief Justice of the High Court and the ‘ Chief Justice of Pakistan, and such appointment if made, would be illegal and unconstitutional and open to challenge in the absence of cogent reason to be assigned by the Government for making such deviation. He suggested that the Chief Justice of the High Court in such circumstances should not assign judicial work to a Judge so appointed.

 

.63. Mr. S.M. Zafar, learned Senior Advocate Supreme Court, as amicus curiae, assisted this Court and submitted that the federal structure as envisaged in the Constitution. of 1973 is based on the trichotomy of powers in which the federating units (provinces) have joined a federation which discourage concentration of power and instead provide for distribution and fragmentation of powers between the three pillars of the State, namely, Legislature, Executive and Judiciary. The powers of each are distinct and have nexus with each other, but are to be exercised harmoniously. Sometimes grey areas emerge and will continue to emerge and it is the duty of the Judiciary to undertake the exercise to restate the parameters and dimensions of the permissible. interaction. The Constitution is not supposed to validate the past, but provides for the present and future. Keeping in view such concomitant circumstances, the Judiciary is called upon time and against to interpret the provisions of the Constitution. In such background concepts are formed to the effect, which can be worded as under:‑‑‑

 

Firstly, independence of the Judiciary versus power of executive to pack the Courts.

 

Secondly, judicial review versus judicial restraint.

 

Thirdly, rule of law versus discretion.

 

Fourthly,   purposive interpretation of the Constitution versus literal interpretation.

 

For the present the most important and pivotal question for consideration is the concept of “consultation” provided in the Constitution for the appointment of the Judges as mentioned in the Articles 177 and 193 thereof. More thought­ provoking question is whether the “consultation” envisaged in the Constitution in respect of appointment of the Judges is institutionalised, participatory and binding or mere a formality.

 

64. According to Mr. S.M. War, in order to define, the scope of “consultation” under Article 193 of the Constitution, it is enough if the exercise is confined to the framework of the 1973 Constitution. Perusal of the language in Article 193 clearly shows that the “consultation” is supposed to be participatory and meaningful. It is twoway traffic and the hump is crossed. The nature and object of “consultation” must be related to the circumstances which call for it. The “consultation” contemplated in Article 193 is an objectoriented consultation which provides for checks and balances on the discretionary exercise of powers by the President to see that a wrong person is not appointed. According to the learned counsel, the principle in the scheme is that let a good man to stay out, but a bad one should not enter the temple of justice. In the process of consultation, three consultees are involved, who are:‑‑‑‑

 

(a)   Chief Justice of Pakistan.

 

(b)   Governor concerned, and

 

(c)   Chief Justice of the High Court (except where the appointment is that of the Chief Justice).

 

If the Chief Justice of Pakistan says “A must be appointed, the President is not bound to appoint him. The consultees must give a choice to the President to select from amongst several candidates. All the consultees give positive opinion for a candidate and if he is postqualified, the President may or can choose him. If the Chief Justice of Pakistan says no, and the other consultees say yes, the candidate is disqualified and the President cannot appoint him. The Chief Justice of Pakistan’s negative opinion will have supremacy. If a candidate is negatived by the Governor only, the matter should be referred to two consultees and if answer is in affirmative, he stands qualified. Out of postqualified candidates, President may choose any as free choice is there.

 

65. Mr. S.M. Zafar submitted that Article 193 requires reinterpretation. The Chief Justice of Pakistan and the Chief Justice of a ‘High Court are not consultees in personal capacities, but as Heads of the Judiciary, and the Judiciary is an institution, hence it is institutional “consultation” which is different from personal “consultation”. The Court should devise i methodology to give representative character by forming a Committee to help in the recommendation. The selection method must be institutionalised. In America, lawyers and Bar Associations are brought in the process of consultation, which should be done by way of an arrangement or facility on the same lines as doctrine of indoor arrangement. It was suggested by the learned counsel that in that context the Supreme Court Rules can be amended to achieve the object mentioned above. It was suggested that any name not having emanated from the Chief Justice of the High Court and interjected by the Federal Government during consultative process need not be considered at all. The independence of the Judiciary may be read in Article 193 and inspired by such spirit. Judges should be appointed on merit as to their integrity and knowledge. Mr. S.M. Zafar also stated that he does not share the view that a Judge becomes independent after administration of oath.

 

66. Mr. Muhammad Akram. Sheikh, President, Supreme Court Bar Association, submitted that the independence of the Judiciary is of utmost importance for the consumers of justicemore than any other person or agency or organ of the State. On the question of “consultation” he agreed with the line of reasoning adopted by Mr. Yahya Bakhtiar which, according to him is fair and positive improvement to the effect as said by Mr. Yahya Bakhtiar, “not binding, but should not be disregarded or ignored”. He further stated that if the opinion of the Chief Justice of Pakistan is disregarded, then there is no remedy. In India, the opinion of the Chief Justice of India, has support of two other senior Judges of the Supreme Court as is envisaged in the Constitution, hence the opinion of the Chief Justice of India becomes institutionalised opinion. In the Constitution of our country, such provision of support of other Judges in the Supreme Court to the opinion of the Chief Justice of Pakistan does not exist, hence the opinion of the Chief Justice of Pakistan has no primacy as the appointment is ultimately an executive action. He insisted that appointment should be transparent and free from political influence and did not agree with the joint theory of the three counsel appearing on behalf of the Federal Government, namely, the learned AttorneyGeneral for Pakistan and M/s. Yahya Bakhtiar and Ch. Aitzaz Ahsan who took the plea that a Judge after he is administered oath, becomes independent by way of transformation. Mr. Sheikh further submitted that there is an established convention supporting the independence of the Judiciary that the names of the Judges always emanated from the Chief Justice of the High Court and for appointment of the Chief Justice of a High Court, always the most senior Judge was considered and appointed in the normal course with the exception of two or three departures. Mr. Justice Tufail Ali Abdur Rehman was appointed directly as the Chief Justice of the High Court of Sindh, Mr. Justice Manzoor Qadir was appointed directly as the Chief Justice of the Lahore High Court and Mr. Justice Aslain Riaz Hussain was appointed as the Chief Justice of the Lahore High Court out of turn. He dilated upon the Constitutional conventions, which according to him, should be followed and did not say much on the question of “consultation” and supported the interpretation put on it by Mr. Yahya Bakhtiar. He also emphatically argued that consultation with an Acting Chief Justice is not the same thing as consultation with a permanent Chief Justice.

 

67. Mr. Shahid Orakazi, a free lance journalist, appeared in the Court and filed an application requesting to be impleaded as patty and to be heard on the questions of public importance relating to the interpretation of the Judiciary ­related Articles. He offered his assistance on the interpretation of the Articles in the Constitution on the point that the President is bound to accept and act upon the advice of CJP and in that connection sought to give interpretation of Articles 182, 183 and 200 and has dilated upon the meaning of the words “consultation”, “approval” “advice”, “opinion” and “convention”. He has mentioned about floorcrossing by the members of the Parliament and on that account has drawn his own conclusion with legal status of the Assemblies with which we are not concerned at present. He has filed documents in support of his assertions which are appended with his application.

 

68. Mr. Sharifuddin Pirzada, the learned Advocate Supreme Court assisting as amicus curiae on the request of the Court, stated on the ‘subject of “consultation” that the CJP has primacy and his opinion is binding on the President who is the appointing authority. He further stated that expression, consultation” in the relevant Articles of the Constitution relating to the Judiciary must be read in its context and its colour and contents are derived from its context. The consultation between the President and the Constitutional functionaries is not a mere formality but a mandatory requirement and has to be full, effective and meaningful.

 

69. ‘Now we take up the interpretation of the Judiciaryrelated Articles as mentioned in the Constitution. The first question which shall come up for consideration will be the meaning of the word “consultation” which is very pivotal in nature because the whole controversy with regard to the independence of the Judiciary and the appointments of the Judges have close nexus with it or B in other words deeprooted in it. In order to find out the true import or meaning of this word “consultation” the whole history of the judicial setups in India and Pakistan has been traced going back to the Government of India Act, 1935 and even the period earlier than that as mentioned in the preceding paragraphs of this judgment. It is manifest that in earlier legal instruments before the partition, the word “consultation” is not used because there was no need to mention it as the appointments were directly made by the British Rulers who enjoyed the supreme control and the appointees were at the receiving end. The need was felt to use the word “consultation” in the scheme of appointments in the superior Judiciary in the Constitution when India and Pakistan became independent countries to enjoy the benefit and fruits of democratic rule for which agitation was made by, the people who rendered sacrifices of lives and property and millions of them were uprooted and migrated for achievement of freedom. It was made known to the people that they were fighting for the freedom and in consequence of freedom what would they gain would be democracy and their own Government and perception of such democracy was Government of the people, for the people and by the people. To set up such democratic Governments, Constitutions were made in India and Pakistan in, order to produce system of governance with trichotomy of powers among the three pillars, namely, the Legislature, Executive and Judiciary. The word “consultation” has been used for the first time in the Constitution of India and the Constitution of Pakistan in connection with appointments of Judges in the Superior Judiciary. The history of India and Pakistan, as mentioned in detail in the preceding part of this judgment, very clearly shows that always effort was made to seek that the Judiciary functioned independently and should not be controlled by the Executive. There is no cavil with the proposition that the Legislature has to legislate; the Executive has to execute laws and the Judiciary has to interpret the Constitution and laws. The C success of the system of governance can be guaranteed and achieved only when C these pillars of the State ~ exercise their powers and authority within their limits without transgressing, into the field of the others by acting in the spirit of harmony, cooperation and coordination. So far the powers of the Judiciary are concerned, we are exactly going to do that and we are going to interpret the relevant provisions of the Constitution within the limits prescribed so that the provisions are harmonized and the Constitution becomes workable.

 

70. We have to make reference to India time and again for the reason that before the partition it was one country, hence the problems which we are facing today in the present era, are more or less common. The same problem had arisen in India with regard to the scope of the word “consultation” and resistance was made by the Judiciary to widen its scope. Persistently, efforts were made in India by the Executive to have final say in the appointment of the Judges by restricting the scope of the “consultation” to a mere formality, but finally this question cam up for consideration in the case of S.P. Gupta v. President of India and others 1982 SC 149 and Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994 SC 268. In the latter case they have definitely laid down in very specific terms the scope of the word “consultation” visavis Powers of the President and CH in respect of appointments in the Superior Judiciary. In nutshell, the main conclusion is that in the process of consultation” the opinion of the Chief Justice of India has primacy.

 

 71. Likewise, in Pakistan, we are still confronted with this problem and are in constant search to find out as to what is the scope of “consultation” in’ respect of the appointments of the Judges as contemplated in the Constitution. Unfortunately, in this country, on three occasions in the past Martial Laws were imposed and we were compelled due to such circumstances to promulgate three Constitutions for the reason that every time we decided on a particular system of governance provided in the Constitution, apples cart was upturned and Martial Law was imposed and in consequence the Constitution was abrogated. Needless to say that every time Martial Law was imposed, jurisdiction of the Courts was curtailed and its independence eroded. After termination of Martial Law we again had to make struggle for making another Constitution and it met the same fate with imposition of Martial law. Lastly, for the third time, we came out with the Constitution of 1973 which envisages Parliamentary form of Government and the most important aspects of this Constitution is that it has been made and enacted with “consensus” of all the political parties, who were represented in the National Assembly and in this Constitution all the Provinces have ‘ agreed on the question of autonomy. This Constitution also became from victim of Martial Law but the redeeming feature of this Constitution is that it was not destroyed in totality by the martial Law but was held in abeyance and was revived seemingly for the reason that in this Constitution there was element of “consensus”. I emphasise on the word “consensus”. It was “consensus” of all the political parties and “consensus” of the Provinces also on the question of autonomy which remained as inbuilt safeguards, and played an important role in deterring the CMLA from abrogating this Constitution altogether. The magic wand of consensus” saved this Constitution from abrogation and total annihilation and ensured its revival in whatever form and shape it is today.

 

72. When the 1956 Constitution was in the making, in the chapter relating to appointments in the Superior Judiciary, suggestion made in Sapru’s Report to use the word “concurrence” was not accepted and instead the word “consultation” was used as it was used in the Constitution of India, but the text and tenor of the speech of late I.I. Chundrigar, the then Law Minister, on the floor of the Constituent Assembly, shows that this word “consultation” in respect of appointments of the Judges was to be read in conjunction with the preservation and enhancement of the independence 6f the Judiciary. In the 1962 Constitution, which contemplated President Form of Government, a report was obtained from the Law Commission, which is called as Justice Shahabuddin Report. In this Report suggestion was made that the Chief Justice of Pakistan would send “recommendation” after consultation with his colleagues in respect of appointments in the Supreme Court which were supposed to be accepted by the President and such “recommendation” should be obtained from the retiring Chief Justice, failing which the President should select the Chief Justice out of the Supreme Court Judges. The word “recommendation” in the report was not accepted and in the, Constitution instead the word “consultation”  incorporated. In the Draft Constitution of 1973 again attempt was made to use the word “recommendation” and it was proposed that the President shall appoint Judge of the Supreme Court from a panel of three names recommended by the Chief Justice. Similar proposal was made for appointment in the High Courts as well.

 

73. The Draft relating to the Judiciary was considered by the Judges of the Supreme Court as the Government invited comments from them. The Judges of the Supreme Court opposed the idea of panel of three Judges and ‘consultation’ with Governor but suggested “recommendation” to be made by the Chief Justice. Some suggestions made by the Judges of the Supreme Court were accepted and in the result “panel of three Judges” was dropped and “recommendation” was not accepted and replaced by “consultation”. Even in the Draft Constitution of 1973 on the subject of Judiciary, the emphasis was to make it as far independent as possible and keeping that spirit of independence in view the Judges of the Supreme Court in their comments on the Draft Bill wrote back, relevant part from which is reproduced as under,

 

“In view of the emphasis of the Constitution on the greater independence of the Judiciary, it is suggested that the requirement as to “consultation” with the Governor of the Province concerned be deleted from clause (2) of this Article.”

 

74. Now it is to be seen as to what happened on the floor of the National Assembly when the Constitution Bill was processed and passed particularly when the Chapter relating to the Judiciary was being processed. Our anxiety is to and out how the most important word “consultation” was discussed in detail and what meaning or scope was intended by the Legislators to be assigned to this word “consultation”. From the debates on the Constitution Bill it appears that Articles relating to the Judiciary were taken up for consideration on 27th March, 1973 and Article 177 in which word “consultation” is used in respect of appointment of Judges of the Supreme Court and Article 193 in which word “consultation” is used in respect of appointment of Judges of the High Court were both deferred and were taken up for consideration again on 7th April, 1973. 1 am surprised to see that on Article 177 no debate took place at all. Two Amendments Nos. 1457 and 1462 were proposed to be made by Malik Muhammad Akhtar and Ch. Jehangir Ali, who were both members of the ruling party and from these amendments Malik Muhammad Akhtar declined to move his amendment, but Ch. Jehangir Ali did move, which was accepted. This amendment was for deletion of “panel of three names recommended” to be substituted with “after consultation”. The Motion was allowed and the amendments were proposed to be moved seemingly by members of the opposition, which were not moved by them for the reason stated that they were not present. Similarly, on Article 193 there were two amendments proposed to be made by members of the ruling party from which one in the name of Malik Muhammad Akhtar was not moved and the other in the name of Malik Muhammad Jaffer was moved, which was allowed and in the result clauses (1) and (2) of Article 193 were substituted and renumbered. It is pertinent to point out that in respect of Article 193, 14 amendments were proposed to be made by members of the opposition, which were not moved for reason stated that they were not present. It appears from the proceedings that opposition members en bloc were absent possibly for the reason of walk out as a measure of protest on account of some dispute or differences with the ruling party. The end result is that discussion in detail did not take place. Nothing was mentioned about the merits and demerits of the word “consultation” and how and for what purpose it was used and what meaning was assigned to it by the Constitutionmakers whose wisdom of intention is not to be questioned. I do not propose to make any further comment on this aspect of the matter except that we are left high and dry and cannot get any assistance on this pivotal point as to what was the intention and scope in the minds of the Constitutionmakers when this word .,consultation” was used in Articles 177 and 193 of the Constitution. In such circumstances, judiciary should  shirk its duty of interpreting the Constitution to supply reasonably correct meaning to the word “consultation” in order to harmonise the provisions with other provisions and make the Constitution workable to resurrect the independence of the Judiciary as guaranteed in the Constitution and Islam.

 

75. As stated in the short order, if we look at the Constitution of 1973, we find that the title is “The Constitution of Islamic Republic of Pakistan” and Article 2 thereof commands that Islam is to be its State religion. Preamble to the Constitution says that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed and independence of judiciary fully secured Objectives Resolution as reproduced in the Preamble has been made as substantive part of the Constitution by Article 2A inserted by P.O. No. 14 of 1985, Part IX of the Constitution contains Islamic provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. The institution of Judiciary in Islam enjoys the highest respect and in this judgment in the preceding paragraphs from 34 to 46 instances from the Islamic history have been given showing how and on what criteria Judges/Qazis were appointed and how they were respected and even the rulers. of the time used to appear in the Court and obey judgments without any demur, which were binding on them. The Islamic history also shows that rulers were Godfearing, humble, polite, benign, unsarcastic and righteous, and did not claim any air of mundane superiority and  submitted to the Jurisdiction of the Courts as a matter of duty. In one case when Amirul Momineen appeared in the Court of Qazi who got. up from his seat as a gesture of deference, Amirul Mornineen disapproved it on the ground that it was inconsistent with the dignity and independence of the Court. In Islam Chief Justice was given power to appoint other Judges in the subordinate Courts.

 

76. We have to interpret the word “consultation” in’ the light of the Objectives Resolution, which is integral part of the Constitution providing in unequivocal terms that the independence of the Judiciary shall be fully secured i Article 175 of the Constitution envisages that Judiciary shall be separated progressively from the executive within 14 years from the commencing day. The time stipulated in the Constitution has expired after which this matter was taken in hand and came up before the High Court of Sindh which allowed the writ petition and then petition for leave to appeal was filed in this Court titled Government of Sindh v. Sharaf Faridi reported as PLD 1.994 SC 105 in which this Court on the subject of independence of Judiciary held as under:‑‑

 

“That every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.”

 

77. In the judgment of this 9;ourt further guidelines have been provided for financial independence of the Judiciary. The cut off date given by this Court was 23rd March, 1994. Later the review petitions were filed by theFederal and the, Provincial Governments for extension of time, which was extended up to 23rd March, 1996 to enable the respective Governments to take steps and finalise the separation of the Judiciary from the Executive as required by the Constitution and the judgment. It may be mentioned that under the judgment of this Court, Judicial Magistrates have been separated from the Executive Magistrates and the former are to act under the supervision and control of the ‘High Courts and would have no connection whatsoever with the Executive. The Magistrates, who would remain with the Executive, would be called Executive Magistrates, who’ would not be given any judicial powers except under some minor Acts. With this accomplishment, the Judiciary stands separated from the Executive and even in financial matters the Judiciary has been given independent control over the funds allocated by the Government, which can be reappropriated from one head to another by the Chief Justices.

 

78. Now there is no dispute about the fact that appointment of a Judge as contemplated in the Constitution is an executive action for the reason that the final order is passed in the name of the President and in consequence notification is to be issued as is contemplated under the law and Rules of Business. So far Article 177 is concerned, it envisages that the Chief Justice of Pakistan shall be appointed by the President and each of the other Judges shall be appointed by the President after “consultation” with the Chief Justice. A point arose whether this Article should be read alongwith Article 180, which provides for appointment of Acting Chief Justice of Pakistan providing therein that the most senior of other Judges shall be appointed by the President to act as the Chief Justice of Pakistan. We have declined to go into this question for the reasons, firstly, that in C.P. No. 2P of 1995 appointment of permanent Chief Justice as such was not challenged, but at the time when the petition was filed, there was Acting Chief Justice of Pakistan and his appointment was challenged on the ground that since there was a permanent vacancy, he should have been appointed as a permanent Chief Justice instead of as Acting Chief Justice. During the pendency of the petition a development took place and permanent Chief Justice of Pakistan was appointed and for that reason the petitioner did not press the prayer to that extent. Secondly, proper assistance by the learned counsel on this point was not rendered. Thirdly, cases are pending in which the same subjectmatter is involved.

 

79. On the subject of “consultation’, since no debate took place on ­point in the proceedings when Constitution Bill was being processed, we have tried to construe it in the light of other factors, such as, Islamic provisions in our Constitution and separation of judiciary which has already taken place. Appointment of a Judge and the mode and manner in which he is appointed has close nexus with the independence of the Judiciary and cannot be separated from each other as advocated by several counsel before us during the hearing. We do not buy the idea that as soon as a Judge takes oath, there is a sudden transformation and he forgets his past connections and turns a new leaf of life. The process of appointment of a Judge must be made transparent so that the litigant public and people at large should have faith in the independence of Judiciary. Normally, people come to the Court to have their disputes adjudicated by the Judges and they come with expectation that Judges are impartial and justice will be imparted strictly according to law without any fear or favour or extraneous considerations. This kind of faith and trust will vanish if appointments are not made in a transparent manner strictly on the basis of merits. Article 5 of the Constitution envisages that loyalty to the State is the basic duty of every citizen and obedience, to the Constitution and law is inviolable obligation of every citizen. Judges are also expected to be loyal to the Constitution.

 

80. Coming back to Article 193 of the Constitution the plain reading of the provision is that the appointment of a Judge of the High Court is to be made by the President “after consultation” with:‑‑

 

(a) Chief Justice of Pakistan;

(b) Governor concerned; and

(c)   Chief Justice of the High Court (except where the appointment is that of the Chief Justice).

 

Here the intention is that the appointment is to be made by the President “after consultation” with three consultees, who are mentioned there. In the Constitution proper scheme is provided for the appointment, hence it can be called Constitutional appointment. For such appointment Constitution requires “consultation”, which cannot be treated lightly as a mere formality. To say that the President has sole power of appointment and opinion of the consultees can be ignored particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be experts in the particular’ field of law in which the appointment is to be made, can not be reasonable construction of the word “consultation “. It is understandable that the Governor can find out from intelligence sources about the candidate who is to be appointed as a Judge and his report or opinion is to be confined to that aspect of the matter. The President can refuse to appoint a candidate in whose favour Chief Justice of the High Court and Chief Justice of Pakistan have given their positive opinions, but Governor has given negative opinion for reasons of improper antecedents. The Chief Justice of. the High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but, must be given due weight. “Consultation” in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensusori6nted, leaving no room for complaint of arbitrariness ‘ or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship   is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive.

 

81. If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word “consultation” is used, which is different from ‘,consent’, opinion of Chief Justice can be ignored. If the opinion of the Chief Justice is ignored, then the President/Executive should give reasons which could be juxtaposed with reasons of the Chief Justices to find out as to which reasons are in public interest.

 

82. We are interpreting the word ‘consultation’ to widen and enlarge its normal scope for the reasons, firstly, that the Constitutionmakers have not debated this word ‘consultation’ and fixed its parameters. Secondly, we would like to assign meaning to ‘consultation’, which is consistent and commensurate with the exalted position of Judiciary as is envisaged in Islam. Thirdly, we would like to give positive interpretation to ‘consultation’ which promotes independence of Judiciary. Executive may have the last word and may issue notification of appointment, but cannot give loose interpretation to the word I consultation’ to ignore or brush aside expert opinion of Chief Justice of the High Court and the Chief Justice of Pakistan. Fourthly, the President is administered oath by the Chief Justice of Pakistan as required under Article 42 of the. Constitution and the Chief Justice of Pakistan administers oath to other Judges of the Supreme Court and Chief Justice of Province administers oath to Judges of his High Court as contemplated under Articles 178 and 194 respectively, which shows that both the Chief Justices are tends of their institutions and their opinion in their own field of expertise should not be treated lightly particularly when they are Constitutional consultees and the appointments are also being made of the Judges within the Constitutional scheme.

 

83. The scheme of the appointments of the Judges as envisaged in the Constitution clearly indicates that they are of permanent nature and if there are vacancies of temporary nature, then temporary appointments can also be made of Acting and Ad hoc Judges in the Supreme Court, Acting Chief Justices in the Supreme Court and  High Courts. If in the normal course, a permanent vacancy occurs, the same should be filled in within thirty days. But if such vacancy occurs before due date of retirement of a Judge on account of death or for any other reason, then the same should be filled in within ninety days on permanent basis. Under Article 181 of the Constitution if there is a vacancy in the Supreme Court or a Judge of the Supreme Court is absent or unable to perform the functions of his office due to any cause. Acting Judge can be appointed from a High Court, who is qualified for appointment in the Supreme Court. The ‘explanation to this Article further provides that a Judge of a High Court includes a person who has retired as a Judge of High Court, which means a retired Judge of a High Court can be appointed as Acting Judge before he attains the age of sixtyfive which is the age of superannuation in the Supreme Court. Under Article 182 for want of quorum of the Judges in the Supreme Court or for any other reason if it becomes necessary to increase temporarily the number of Judges, the Chief Justice may in writing have appointment of Ad hoc Judges with the approval of the President. The following persons are eligible for such appointment. A retired Judge of the Supreme Court can be appointed if three years have not elapsed from the date of his retirement. A serving Judge of a High Court can also be appointed provided he is qualified to be the Judge of the Supreme Court. It appears from the perusal of Article 182 that even these appointments cater for temporary situation in which the number of the Judges is to be increased after the sanctioned strength of the Court is filled with the permanent appointments.

 

84. It was argued by several learned counsel in the Court before us that wherever the Constitutional provisions are silent and do not provide for a particular situation in which clarification is required, then the conventions and past practice are to be followed to fill in the gaps. One such convention/practice is that the most senior Judge o f the High Court has a legitimate expectancy to be considered for appointment as Chief Justice and if he is not appointed then valid reasons are to be assigned. The question arises as to how far this convention or practice would be allowed to be applied when in the Constitution contrary provisions exist. In other words, legally or morally speaking if reconcilement is possible, then it should be done, otherwise if such appointment is not to be made then reasons should be assigned.

 

85. We are of the view that Acting Chief Justices are appointed for a short time and for that reason, in the relevant Articles, automatic arrangement is provided particularly in the appointment of the Acting Chief Justice of Pakistan,. but no criterion is laid down in the provision of appointment of Acting Chief Justice of the High Court. In all fairness, the period for such acting appointment should not be more than, ninety days during which Acting Chief Justice may perform functions of routine nature excluding “recommendations” in respect of appointment of Judges. We say so for three reasons. Firstly, Article 180, which provides for appointment of the Acting Chief Justice of Pakistan and Article 196, which provides for appointment of the Acting Chief Justice of a High Court, do not specifically provide that they can participate in them consultative scheme of the appointment of the Judges as envisaged in the Constitution. Secondly, Acting Chief Justices are supposed to be functioning for a short time and, therefore, it would not be fair to allow them to interfere with policymaking matters and appointments in the Judiciary which should be left for permanent incumbents. Thirdly, Article 209 of the Constitution contemplates the composition of the Supreme Judicial Council which is supposed to be comprised of (a) the Chief Justice of Pakistan, (b) two next senior most Judges of the Supreme Court, and (c) two most senior Chief Justices of the High Courts. In the explanation appointment of Acting Chief Justices is expressly excluded which clearly shows that the intention of the Constitutionmakers is that the Acting Chief Justices are allowed to function for a short time and more importance is to be attached to permanent Chief Justices and in the absence of permanent Chief Justices of the High Courts or, even for that matter, of the Supreme Court, the composition of the Supreme Judicial Council becomes imperfect and the Body as such becomes unfunctional.

 

86. There may be exceptional cases in which no control could be exercised over the situation. For instance, after imposition of Martial Law on 5th July, 1977, the Chief Justices of the High Courts were made Governors of the Provinces and in their places in the High Courts Acting Chief Justices were appointed. It so happened that the Chief Justices remained away from the High L Courts as the Governors for about fifteen months and Acting Chief Justices had to perform their duties. There was Martial Law in the country and the Constitution was held in abeyance and the system under that arrangement had to continue. In such circumstances, the Judges had to be appointed and for such appointments in the High Courts, “recommendations” were made by the Acting Chief Justices. The Martial Law remained operative for a long time and the Supreme Court gave it cover of validity on the ground of the doctrine of necessity and empowered the CMLA to amend the Constitution. Article 270A was inserted in the Constitution by P.O. No. 14 of 1985, which was substituted by Act XVIII of 1985 passed by the Parliament to enable withdrawal of Martial Law wide Proclamation dated 30th December, 1985. We are not holding that all the appointments made in the past or for that matter in the distant past on the “recommendations” of the Acting Chief Justices are void ab initio because they were validated later in the process and have become past and closed transaction.

 

87. We have for the first time examined in detail the word “consultation” used ‘ in the Articles of the Constitution in respect of the appointment of the Judges and have laid down the parameters for reasons which are stated above. We, have also held that appointment of an Acting Chief Justice is a stopgap arrangement and is supposed to last for a short time and he is not authorised to deal with the policy matters including making “recommendations” in the  appointment of the Judges. In the direct petition and the appeal before us the appointments of the Judges were called in question and several Judges appointed by the present Government were made respondents. The meaning and scope of consultation” now laid down by us and the powers of Acting Chief Justices in connection therewith would affect only such appointments which have been made by the present Government and this exercise would not go beyond that. We are leaving it open that the appointments made with the “recommendations” of the Acting Chief Justices in the High Courts can be reviewed and steps can be taken by the permanent Chief Justices to regularise them if this can be done on the basis of merit within thirty days from the date when the permanent Chief Justices are appointed in the High Courts and take oath. Regularisation shall take place as contemplated under Article 193 of the Constitution.

 

88. Under Article 197 of the Constitution there is a provision for appointment of Additional Judges and it appears that there is no requirement that they can be appointed only after the sanctioned strength of the Judges of the High Court is filled in with the permanent appointees. From this it appears that even against the vacancies within the sanctioned strength a person can be appointed as Additional Judge of the High Court for a period to be specified and then can be made permanent as communicated under Article 193. We are of the view that such Judges have legitimate expectancy to be entitled and considered for appointment upon expiry of their period of appointment as Additional Judges if and when they are so recommended for the purpose by the Chief Justice of the High Court and the Chief Justice of Pakistan. If such appointments are refused to be made then there should be strong’ reasons recorded in writing. Extension to be made or not is not the sole discretion of the Federal Government unless such request is made by the Chief Justice of the High Court and the CJP.

 

89. Article 200 of the Constitution contemplates transfer of Judges from one High Court to another by the President after “consultation” with the Chief Justice of Pakistan and the Chief Justices of both the High Courts. No such consultation is necessary if the transfer is for two years. It appears that this transfer can be  allowed if it is in the public interest and is not by way of punishment.

 

90. Under Article 193 the qualifications are specified for appointment as Judge of a High Court. One requirement is that an advocate is eligible to be elevated only when he has been advocate of the High Court for ten years. The question arose as to whether it is necessary that such advocate must have put in ten years of active practice in the High Court or mere enrolment is sufficient. We are of the view that for this requirement ten years’ active practice in the High Court is necessary “and mere enrolment as advocate of the High Court is not enough if the advocate concerned has not practised in the High I Court but has been doing some other job or business and was not in active practice.

 

91. The political affiliation of a candidate for judgeship may not be a disqualification provided he is a person of integrity and has active practice as advocate of the High Court and has sound knowledge of law and has also been recommended by the Chief Justice of the High Court and the Chief Justice of Pakistan.

 

92. Although the Constitution does allow under Article 196,’ which provides for appointment of Acting Chief Justice of a High Court, a Judge of the Supreme Court to act as the Chief Justice of the High Court for a short time but we are of the view that this practice should be avoided and it would be much better if it is not done for reasons firstly that if a Judge of the Supreme Court goes as Acting Chief Justice then his judgments become appeal able in the Supreme Court of which he is a permanent Judge. Secondly, such appointment causes embarrassment to the Judge of the Supreme Court because the Judges of the High Court normally do not welcome such an appointment.

 

93. Article 209 of the Constitution relates to the composition of the Supreme Judicial Council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability to perform the duties of his office for the reason of physical or mental incapability or misconduct. SubArticle (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as  provided by this Article. SubArticle (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and the High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High, Court or of the Supreme Court. This provision is, incorporated in the Constitution by the Constitutionmakers. Subsequently, Chapter IIIA setting up the Federal Shariat Court was inserted in the Constitution vide P.O. No. I of 1980 providing in Article 203C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding two years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If a Judge or Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter IIIA inserted in the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this chapter shall have effect notwithstanding anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions in the final analysis is tantamount to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is authorised to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be uncooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. We are not striking down provisions (4), (4B) and (5) of Article 203C as void being inconsistent with Article 209 but we do say that, keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament. In support of the proposition, reliance can be placed on the cases of Fazlul Quader Chowdhry v. Muhammad Abdul Haque (PLD 1963 SC 486) and Hakim Khan v. Government of Pakistan (PLD 1992 SC 595).

 

94. Before we part with this judgment, we would like to express our thanks to the learned counsel who appeared in these cases before us for the parties and also as amicus curiae and rendered a very useful and commendable assistance. We  also appreciate the unrelenting assistance rendered by the members of the staff who worked tirelessly to provide the requisite support in the lengthy hearing of this case.

 

(Sd.)

SAJJAD ALI SHAH, C J

 

I had recorded my separate reasons copy of which sent to H.C.J. HJ (5) and then HJ(6). The latter two agreed with me and signed the same with me on 2431996. I adhere to my above reasons.

 

I also agree with the above reasoning.

(Sd.)

AJMAL MIAN, J

(Sd.)

FAZAL ILAHI KHAN, J

 

I also agree with above reasoning and have also recorded additional reasons.

 

(Sd.)

MANZOOR HUSSAIN SIAL, J

 

AJMAL MIAN, J./Since the above two cases involve a number of Constitutional questions of public importance, I intend to record my own reasons.

 

2. The brief facts leading to the filing of aforesaid Civil Appeal and Constitution petition are that appellant No. 1, who is a practising lawyer of this Court and claims to be the head of appellant No.2 Trust, namely, AlJihad Trust, filed Writ Petition No.875 of 1994 in Lahore High Court at Rawalpindi Bench, Rawalpindi, on 191994, in which he arrayed 34 respondents which inter alia included 20 Additional Judges of Lahore High Court i.e. respondents Nos.7 to 26, who were appointed by a notification dated 581994 for a period of one year. He also impleaded 8 Additional Judges of Lahore High Court as respondents Nos. 27 to 34, who were appointed during the Government of Mr. Nawaz Sharif as Additional Judges for a period of two years and were not confirmed by the present Government. In addition to that, he also arrayed the Federation, the President, the Prime Minister, Mr. Justice (Retd.) Mahboob Ahmed, Mr. Justice Muhammad Ilyas, the then Acting Chief Justice of Lahore High Court ‘ and the Governor of the Province of Punjab, as respondents Nos. 1 to 6 respectively. The grievance of the appellants was that, the above appointments of 20 Additional Judges were not made in accordance with the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, inasmuch as 3 women Additional Judges were not qualified to have been appointed and that the remaining male Additional Judges were appointed not on merits but because of their affiliation with the political party in power, which included even a person against whom then a murder case was pending in the Court of Additional Sessions Judge, Rawalpindi. It was also alleged that the latter were not in fact practising advocates and, therefore did not have the required qualification of 10 years’ practice. It was further alleged that the transfer of Mr. Justice (Retd.) Mahboob Ahmed, the then Chief Justice of Lahore High Court, to, the Federal Shariat Court was founded on mala fide for the reason that he did not recommend the names of certain persons for judgeship in whom the Government was interested. It was also averred that the appointment of Mr. Justice Muhammad Ilyas as the Acting Chief Justice of Lahore High Court was also actuated with maliceThe appointments of Mr. Justice Muhammad Munir Khan and Mr. Justice Mir Hazar Khan Khoso as Acting Judges of this Court were also referred to.

 

3. As regards the appointment of Mr. Justice Saad Saood Jan as the Acting Chief Justice of Pakistan, the, following averments were made:‑‑

 

4. On the basis of inter alia the above allegations, the appellants had prayed for the following reliefs:‑‑

 

5. The above petition was resisted by the official respondents. A Division Bench of Lahore High Court disposed of aforesaid writ petition alongwith Writ Petitions Nos.9893 and 10186 of 1994, in which also the appointment s of certain Judges were assailed, through a common judgment dated 491994. Incidentally, it may be mentioned that one of the Judges of the above Division Bench was Mr. Justice Ch. Mushtaq Ahmed Khan, who was arrayed in the above petition as respondent No.32. The learned Judges of the Division Bench concluded that the appointments of respondents Judges were made it accordance with the Constitutional provisions. It was held that there was no evidence that some of the above appointed Additional Judges had not been practising as advocates in Courts. It was further held that a close reading of Article 193(l) of the Constitution made it clear that an advocate of High Court having 10 years’ standing was eligible for elevation to the High Court and it, was not necessary that he or she had been practising as an advocate of the High Court for the aforesaid period. Reliance was placed on certain judgments of Indian jurisdiction. It was also concluded that the petitioners failed to make out a case of mala fide. It was also held that there was no bar to the appointment of women Judges in the Judiciary. It was further concluded that Acting Chief Justice was competent to make recommendation as under Article 260 of the Constitution, Chief Justice includes the Judge for the time being as the Acting Chief Justice of the Court. It was also concluded that ordinarily the above appointments should have been made permanent on the very first day keeping in view the nature of existing permanent vacancies and also keeping in view the pending load of judicial work and, therefore, it might not be necessary for the Prime Minister or the President to wait for the expiry of one year term for which period the above 20 Judges were appointe4 to confirm the said Judges. In result, the above writ petition and the other two connected writ petitions were dismissed. Thereupon, present appellants Nos. 1 and 2 filed a petition for leave to appeal on or about 27101994. It may be observed that prior to the, filing of the aforesaid writ petition in the High Court, the aforementioned two appellants had filed above Constitution Petition No.29 of 1994 on or about 2341994 under Article 184(3) of the Constitution in this Court directly. In the above petition, they arrayed the Federation through the Secretary, Ministry of Justice, the President, the Prime Minister and the Law Secretary, by name as respondents Nos. 1 to 4 respectively. In the memo. of petition it has been averred that every citizen has the right to have an independeiA”i~4iciary for dispensing justice according to Qur’an and Sunnah, which is a’ Fundamental Right in view of Articles 2A, 175, 176, 177, 192 and 199 of the Constitution read with Article 10 of the Charter of United Nations to which Pakistan was a party. In paras. 3 to 7 and 13, the following averments have been made:‑‑

 

6. In the above Constitution Petition it has also been averred that the petitioners had filed Writ Petition No.869 of 1991 in Lahore High Court for assailing the above amendments in the Constitution referred to in above quoted para. 13 of the Constitution, which writ petition was admitted for regular hearing on 2181991 and it was recommended by the admitting Judge to the learned Chief Justice to form a larger Bench but the above aforesaid writ petition remained pending. In the above Constitution petition, the following reliefs have been prayed for:

 

7. The Federation has filed a written statement, in which the averments contained in the petition are denied. It has been averred that the appointment of Judges of the High Court is made by the President under Article 197 of the Constitution pursuant to the advice given by the Prime Minister under Article 48 of the Constitution. It has been further averred that the role of the other functionaries mentioned in Article 193 etc. is rather limited as compared to that of the President, the final appointing authority. It is also averred that it is incorrect to assume that without a recommendation, a person could not be appointed as a Judge if otherwise requirement of Article 193 of the Constitution etc. was satisfied.

 

It is denied that there was any mala fide in appointment of Mr. Justice Mahboob Ahmed as a Judge of the Federal Shariat Court. It has been averred that his appointment was made according to the Constitution, which cannot be made a basis of judicial review. It has been asserted that although as a general rule there is no dispute that on permanent vacancies, Judges should be appointed on a permanent basis. However, it would not be correct as an assumption or as a fact that any appointment on acting or ad hoc basis has been made to keep the Judges of the Courts under pressure as alleged. It has also been asserted. that there is no bar for making appointments for a fixed period against permanent vacancies nor by it the independence of judicial system is impaired. It has also been averred that the provisions of Article 193(2)(a) of the Constitution do not lay down any other condition except that the person has been an advocate of the High Court for 10 years. It has further been denied that any appointment of Judges has been made mala fidely. It has been asserted that the past association of an individual with a political party does not disqualify him if he is otherwise qualified to be i Judge of the High Court. It has been further asserted that in England, out of 139 appointments made between 1832 and 1906, 80 of those appointed were Members of Parliament at the time of their appointment. It has also been asserted that the retiring age of the Judge of the High Court is not part of qualification of a Supreme Court Judge. The allegations made against the President and the Prime Minister are also denied. It has been averred that the petition is liable to be dismissed with costs.

 

8. It appears that the above petition for leave and the Constitution petition had come up for hearing inter alia on 16th, 17th and 18th July, 1995, before a full Bench of this Court comprising the learned Chief Justice and four companion Judges after notice to the learned AttorneyGeneral. After hearing appellant No.1/petitioner No.1, the learned AttorneyGeneral and Mr.Raja Muhammad Akram, learned Senior Advocate Supreme Court for respondents Nos. 29, 30, 31, 33 and 34, this Court granted leave in the above petition as under‑‑‑‑

 

“Leave is granted to examine in detail whether the judgment of the High Court impugned herein is sustainable on the ground that it is consistent with correct interpretation of the Articles in the Constitution relating to judiciary

 

(2)   Miscellaneous application for transposition of some respondents as co­- petitioners will be heard at the time of final hearing.

 

(3)    M/s. S.M. Zafar. and Fakhruddin G. Ebrahim, learned Senior Advocates of the Supreme Court, are requested to assist the Court  amucus curiae.

 

Whereas the above Constitution petition was admitted for the following reasons:

 

“This petition is directly filed under Article 184(3) of the Constitution which inter alia challenges amendments of certain provisions of the Constitution and it also seeks interpretation of provisions of the Constitution relating to the judiciary.

 

(2)  We admit this petition to the extent of examining the scope and import of provisions relating to the judiciary.

 

(3) Both the matters to come up for hearing together on date to be fixed by the office.

 

9. It may be observed that the aforesaid respondents Nos. 29, 30, 31, 33 and 34 inthe above appeal arising out of the petition for leave were transposed on their application as appellants Nos. 3 to 7 by an order, dated 8101995.

 

10. Very elaborate and lengthy arguments have been advised by the learned counsel who appeared in the above appeal and the Constitution petition. Mr. HabibulWahab AlKhairi, hereinafter referred as to Mr. Khairi, has appeared for himself and for the Trust appellant No.2; whereas Mr. Raja Muhammad Akram, learned , Senior Advocate Supreme Court represented the above newly added appellants Nos. 3 to 7. The Federation was represented in the above appeal by Mr. Aitzaz Ahsan and in the Constitution petition by Mr.Yahya Bakhtiar, learned Senior Advocate Supreme Court  Mr.Qazi Muhammad Jamil, learned AttorneyGeneral, has appeared in response to the Court notice, whereas Messrs S. Shaiifuddin Pirzada, S.M. Zafar, Fakhruddin G. Ebrahim, Sh. Muhammad Akram, President of the Supreme Court Bar Association and Dr. Riazul Hassan Gilani for Lahore High Court Bar Association have appeared as amicus curiae.

 

11. Before dealing with the contentions of the learned counsel for the parties, I may observe that one of the contentions raised by the learned Attorney General was that Mr. Khan had no locus stand to file the above writ petition in the High Court (from which the aforesaid Civil Appeal has arisen) and the above direct Constitution petition. He has also submitted that the pleadings in the writ petition, from which the above appeal has arisen, do not involve the Constitutional points which have been urged and any discussion on the above question will be merely academic which this Court refrains from doing so. Reliance was placed by him on the case of The Province of East Pakistan and another v. M.D. Mehdi Ali Khan etc. (PLD 1959 SC (Pak.) 387), the case of Miss Asma Jilani v. The Government of the Punjab and another (PLD 1972 SC 139), the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595) and the case of Muhammad Siddique, Advocate v. Farhat Ali Khan and another (PLD 1994 Lahore 183).

 

He also submitted that the ‘ above Constitution petition is not entertainable inter alia for the reason that Mr. Khan’s Writ Petition No. 869 of 1991, in which he sought more or less the same relief as in the present petition, is still pending in the High Court for adjudication.

 

12.       As regards the locus stand of Mr. Khan, I may observe that Mr. Khan has referred to Rule 165 of Pakistan Legal Practitioners. and Bar Councils Rules, 1970, hereinafter referred to as the Rules, framed under section 55 of the Bar Councils Act, 1973, whichprovides as follows:‑‑‑

 

“ 165. , It is the duty of Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business political or other character which may embarrass their free and fair consideration of the questions before them for decision. The aspiration on of Advocates for judicial positions should be governed by an impractical estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves. “

 

He has also referred to the following cases:‑‑‑

 

(i)          Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Karachi 404);

(ii) Government of Sindh through Chief Secretary, Karachi v. Sharaf Faridi and others (PLD 19?4 SC 105);

 

(iii)   S.P. Gupta case (AIR 1982 SC 149); and

 

(iv)  Supreme Court Advocates Record Association v. Union of India (AIR 1994 SC 268).

 

13. Rule 165 of the Rules relied upon by Mi. Khan enjoins the Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. It also enjoins the advocates that they should protest earnestly and actively against appointment and selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments whether of business, political or other character which may embarrass their free and fair consideration of the questions before them for decision.

 

14. The above reports relied upon also support Mr. Khan’s contention. I am inclined to hold that not only a practising advocate but even a member of the  public is entitled to see that the three limbs of the State, namely, the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large. The Fundamental Rights, which are enshrined in our Constitution and which also have the backing of our religion Islam, will become meaningless. if there is no independent Judiciary available in the country. The independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the  superior Judiciary. If the appointments of Judges are not made in the manner  provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people. In my view, the appellants/petitioners have locus stand as the Constitutional questions raised in the appeal as well as in the aforesaid Constitution petition are of great public importance as to the working of the Judiciary as an independent organ of the State. Even otherwise, the question of locus stand in the present case has lost significance for the reason that we have admitted the above Constitution petition under Article 184(3) of the Constitution for examining the scope and import of the provisions relating to Judiciary. It may be observed that under Article 184(3) of the Constitution, this Court is  entitled to take cognizance of any matter which involves a question of public  importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution even suo motu without having any formal petition.

 

15. Adverting to the second submission of Mr. Qazi Muhammad Jamil, learned AttorneyGeneral that the pleadings of the writ petition, from which the above appeal has arisen, do not involve the points urged by Mr. Khairi and the learned counsel for the above appellants. To reinforce the above submission he has referred to the case of M/s. Karim Commercial Co. Ltd. v. United Oriental Steamship Co. and 2 others (PLD 1970 Kar. 427) and the case of Mian Muhammad Tahir Ra7a Khan v. Mian Liaquat Hayat Khan and others (PLD 1966 Lahore 15 1), in which inter alia it has been held that a party cannot raise a plea which does not find place in the pleadings.

 

16. The above cases have no application to the case in hand, firstly, that they relate to suits which are subject to strict application of the provisions of the Code of Civil Procedure, which inter alia contain rules relating to pleadings; whereas C.P.C. as such is not applicable to Constitutional proceedings. Secondly, I may again observe that since we have admitted the above Constitution petition under Article 184(3) of the Constitution for examining the scope and import of the provisions of the Constitution relating to Judiciary, the above plea even otherwise has lost its significance. I am also unable to subscribe to the learned AttorneyGeneral’s contention that the present case involves academic discussion on the Constitutional questions.

 

16. As regards the above third submission, namely, that Mr. Khan’s Writ Petition No. 869 of 1991 involving same questions and same relief is still pending in Lahore High Court for adjudication, the present direct Constitution petition under Article 184(3) of the Constitution is not sustainable. In this behalf, it may be pertinent to point out that in above Writ Petition No. 869 of 1991, Mr. Khan had prayed for the following relief:‑‑‑

 

Whereas in the present Constitution Petition, the relief covered under para. (6 A”). is the same which is the subjectmatter of aforesaid Writ Petition No.869 of 1991, whereas the reliefs prayed for in paras in the present petition are not claimed in the aforesaid writ petition pending in the High Court. The above relief claimed in the aforesaid writ petition pending in Lahore High Court and the relief covered by para. of the present Constitution petition relate to the amendments of the Constitution. This Court, while admitting the above Constitution petition, has made it clear that the above’ Constitution petition is admitted to the extent of examining the scope and import of provisions relating to the Judiciary and not for examining the vires of the above amendments in the Constitution. In this view of the matter, the scope of the present Constitution petition as admitted is different from the scope of the above pending writ petition before the High Court. I may observe that the aforesaid Constitution petition was admitted and leave in the petition for leave to appeal was granted as the following events affecting the working of Judiciary, which are resulting into lack of confidence in the Judiciary, had taken place:‑‑‑

 

(i) Bypassing conventions/practices in the appointment of the Judges of the superior Courts.

 

(ii) Induction of ad hoc Judges without filling in the vacancies of the sanctioned strength by permanent appointments.

 

(iii)   The practice of late General Ziaul Haq during Martial Law days to appoint Acting Chief Justices for indefinite long periods inter alia in the High Courts mala fidely was condemned by politicians particularly by the political parties, who were members of the M.R.D. Unfortunately, at present there are three Acting Chief Justices working at Lahore, Karachi and Peshawar. Out of the above three,, two are the permanent Judges of this Court. The Chief Justice of the Federal Shariat Court was also appointed about two years back not for any definite period but until further order.

 

(iv) The two permanent Chief Justices of the High Courts, namely, of Sindh High Court and of Lahore High Court were appointed as ordinary Judges of the Federal Shariat Court.

 

(v)    A controversy has also arisen on the question, as to what extent the recommendations of the Chief Justice of the High Courts and of learned Chief Justice of Pakistan are binding on the Executive, as it is a matter of’ common knowledge that some of the Judges, who have recently been appointed in the High Courts, have been appointed despite of opposition inter alia by the learned Chief Justice of Pakistan.

 

(vi)   Six Additional Judges of the High Court of Sindh who had completed their two years’ tenure, contrary to the wellestablished practice of their being appointed as permanent Judges in the absence of anything against them, were dropped without disclosing any reason.

 

(vii) The above act of dropping Additional Judges upon the completion of their two years’ period was repeated in Lahore High Court inasmuch as inter alia newly impleaded appellants Nos. 3 to 7 were not appointed as permanent Judges without disclosing any reason upon their completion of two years’ period.

 

The above events, which have reference in the above appeal and the constitution petition, have given rise to the following Constitutional questions of, public importance relating to the working of Judiciary, whichwere also argued by the above learned counsel:­

 

Whether under Article 193 of the Constitution, the President has unfettered discretion to appoint any person as a Chief Justice of a High Court or is he bound to follow the guide line if provided in the Constitution or Constitutional convention, if any?

 

(ii) What is the import of the words “after consultation” used inter alia in Articles 177 and 193 of the Constitution? To what extent the President is bound to accept the opinion, of the Chief Justice of ‘Pakistan and/or Chief Justice of a High Court while making appointment\ of Judges in the Supreme Court and High Courts under the above Articles 177 and 193 of the Constitution?

 

(iii)   Whether the President is required to appoint the permanent Chief Justice of Pakistan or a Judge of the Supreme Court or a permanent Chief Justice of a High Court in case of vacancy under Articles 177, and 193 within certain period or can he allow acting appointment of the Chief Justice of Pakistan or a Judge of the Supreme Court or a Chief Justice of High Court under Articles 180, 181 and 196 respectively indefinitely for years?

 

(iv)   Whether an Acting Chief Justice is not a consultee as envisaged under Articles 177 and 193 of the Constitution?

 

(v)    Under what circumstances ad hoc Judges can be appointed in the Supreme Court and for what period, and whether such appointment can be made without first filling in the total sanctioned strength under Article 177 of the Constitution?

 

(vi)   Whether Additional Judges can be appointed under Article 197 of the Constitution against permanent vacancies for an indefinite period?

 

(vii) Whether the Additional Judges appointed against permanent vacancies under Article 197 of the Constitution have any right to be considered for permanent appointment?

 

(viii)Whether there is any conflict between Articles 203C(4)(4B) and 209 of the Constitution. If yes, can it be resolved? If not, what is its effect?

 

(ix)   Whether the requirement provided for in Article 193(2)(a) of the Constitution for a candidate of a High Court judgeship, namely, he has for a period of or for periods aggregating not less than ten years been p advocate of a High Court refers to the actual practice/experience at the Bar or does it refer to did period of enrolment as an Advocate of the High Court?

 

(x) Whether the political affiliation of a candidate for Judgeship is a disqualification?

 

(xi)   Whether the President has absolute discretion to transfer a High Court Judge to another High Court without his consent up to the period of two years or is he to be guided by some principle?

 

18. At this juncture, I may point out the right to have access to justice through an independent Judiciary is a Fundamental Right as held in the case of Sharaf Faridi (supra) by Saleem Akhtar, J. In this regard, reference may be made to the following observation:­

 

“The right of ‘access to justice to all’ is a well recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of ‘due process of law’. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term “due process of law” has been summarized. “  The above view has been affirmed by this Court in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341).

 

19. I am inclined to agree with the above view as I have already observed herein above that without having an independent Judiciary, the Fundamental Rights enshrined in our Constitution will be meaningless and will have  efficacy or beneficial value to the public at large.

 

20. Before touching upon the submissions made by the learned counsel who. have appeared in the above cases, it may be pertinent to point out peculiar features of our country, namely:

 

(i)     Our country is not a secular State but it is An Islamic Republic of Pakistan as per clause (1) of Article 2 of the Constitution, whereas as per Article 2 thereof, Islam is the State religion. It may further be observed that under Article 2A of the Constitution, the principles and provisions set out in the Objectives Resolution reproduced in the Annexure to the Constitution have been made substantive part of the Constitution, which inter alia enjoins that ‘wherein the independence of judiciary shall be fully secured’. It may also be mentioned that under clause (1) of Article 227, it has been provided that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah. We will, therefore, have to examine the question of appointment of Judges with reference to Islamic concept.

 

(ii)   We have adopted Federal type of Government under the Constitution.                    The Constitution envisages trichotomy of power inter se between the three organs of the State, namely, the Legislature, the Executive and the Judiciary. Each organ of the State is required to function/operate within the bounds specified in the Constitution.

 

(iii)   That there exist some Constitutional conventions which are to be invoked while construing Constitutional provisions relating to the appointments/transfers of Judges of the superior Courts.

 

21. (a) As regards the Islamic concept of justice, it may be pertinent to point out that in the early days of civilization, the legislative, the executive and the judicial powers were vested in one person in a State, namely, in a Chieftain or a monarch or a ruler. The concept that there are three organs of the State which share the power of a State, namely, the Executive, the Legislature and the Judiciary, is somewhat a modem concept. Upon the advent of Islam, the Judicial functions were separated from the executive functions at its, very initial stage by the Holy Prophet (P.B.U.H.) by appointing a Qadi for each Province. The separation of judiciary from executive was implemented more effectively during the Caliphate of Second Caliph Hazrat Umar as he appointed Qadis free of control of the Governors. The reason being that the foundation of Islam is on justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the AngloSaxons. Justice in Islam seeks to attain a higher standard of what may be called “absolute justice” or “absolute fairness”. We find repeated references to the importance of justice and of its being administered impartially i . n Holy Qur’an and some of them are as follows: ‑‑‑

 

In one of the Verses of the Holy Qur’an Allah commands that‑‑‑

 

Sura AaleImran;

 

“Oh ye who believe: Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be against rich or poor, for Allah can best protect both. Follow not the lusts 6f your hearts; lest ye swerve, and if ye distort justice or decline to do justice, verily Allah is well acquainted with all that ye do. “ (4135).

 

And in other Surahs Allah commands as under‑‑

 

Surah Maida, 5/9:

 

Oh ye who believe stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just, that is next to Piety: and fear Allah, for Allah is wellacquainted with all that ye do. “

 

Surah Nisaa, 4/58;

 

‘Allah both command you to render back your Trusts to those to whom they are due, and when ye judge between him and man, that ye judge with justice: Verily how excellent is the teaching which He gives you: For Allah is He Who hearth  and seeth the all things.

 

In Surah Maida (5/45) it is ordained;

 

“If you judge, judge in equity between them, for Allah loves those who judge in equity. “

 

“Judges are not to be led away by personal likes or dislikes, love or hate. (0 5/8).

 

I may state that the modem philosophers and theoreticians have borrowed ideas from the above commandments of Almighty God. Thus KANT in his “IMMOVEL, Philosophy of Law” has remarked that:‑‑‑

 

“Justice would cease to be justice, if it were bartered away for any consideration whatsoever.” ,

 

“If justice and righteousness perish, human life would no longer five any value in the world.

 

(b) ‘Reference may also be made to Islamic Jurisprudence, an International Perspective by C.G. Weeramantry, relied upon by Mr.Yahya Bakhtiar, wherein the author under the captions “The Notion of Judicial Independence” and “The Notion of Judicial Impartiality” has made the following comments:‑‑‑

 

“The Notion of Judicial Independence:

 

Since in Islam Law stood at the apex of social organisation, those who administered the law were likewise elevated. In the early days of the Islamic State this was reflected in the preeminent position of the Judge, to whom even the ruler had to refer disputes to which the latter was a party. The judge was called the HakimushShara, i.e. the ruler through law.

 

The Notion of Judicial impartiality:

 

The notion of judicial impartiality is heavily underscored in jurisdiction literature. The extent to which impartiality was expected of the judge is well illustrated in the story concerning the Caliph Omar who once had a law suit against a Jew. When both parties went before the Qadi, the ‘latter rose in his seat out of deference to Omar. Omar is said to have looked upon this act of deference to one party as being such unpardonable judicial weakness that he dismissed him at once Qadi, Justice in Historical Islam, cited in Ibrahim, .1985, p. xcv). “

 

(c) I may also refer to certain passages from an article under the caption “Shari’ah The Islamic Law” by Abdur Rehman 1. Do, where in the author has referred to sayings of Holy Prophet (P.B.U.H.) as to the attributes of Qadis as follows:‑‑‑

 

“In the administration of justice, therefore, a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the path of rectitude. If he does wrong, he is not only responsible to the people but also to God. The noble Prophet (S.A.W.) advised: ‘No judge shall pass a judgment between two men while he is angry’. He must not feel kindness in executing the ordained sentences for the prescribed crimes. The Qur’an says: ‘Let not pity detain you in the matter of obedience to Allah if you believe in Allah and the Last Day and let a party of believers witness their sentences’. He must decide disputes with as ‘ much speed and promptness as possible, for delayed justice produces no appreciable good. He must not accept any present or bribery from the parties concerned. He must exert hard to arrive at A just conclusion. The Prophet said: ‘Verily Allah is with a judge so long as he is not unjust. When he is (willingly) unjust, he goes off him and the devil keeps attached to him’. To a judge, all are equal in the eye of the law. As God dispenses justice among His subjects, so a judge should judge without any d1stinction whatsoever. The Prophet said: ‘The previous nations were destroyed, because they let off persons of high rank and punished the poor and the helpless’. In the Shari’ah, a Judge is a Judge for every matter civil, criminal and military. There is no separate Judiciary for separate civil, criminal and military departments.

 

AlQadi (The Judge) and his responsibilities under. Shari’ah qualification of a Qadi.

 

As we have seen, Islam has given a great importance to justice which must be done at all cost. Those who perform the function of the Qadis (Judges) or Qadi alQudat (Chief Justice) must be not only men of deep insight, profound knowledge of the Shari’ah, but they must also be Allahfearing, forth right, honest, sincere men of integrity. The Holy Prophet (S.A.W.) has said:

 

‘The Messenger of Allah said: “The Qadis are of three types. One type will go to paradise and the remaining two will end up in the fire of hell. The person who will go to paradise is one who understood the truth and judged accordingly. One who judged unjustly after understanding the truth, he will go to hell. Likewise. Qadi who judged in ignorance also will go to the hell.’

 

(d) I may also quote certain passages from an article under the caption written by Mr. Syed Nazeerul Hassan Gilani, Secretary, Islami Ideological Council, Azad State of Jammu and Kashmir Government published in a magazine titled (a publication of the Islami University, Islarniibad), which reads as under:‑‑‑

 

(e) It will not be out of context to quote the relevant portion of a letter of Hazrat Ali Karam Allah WaJho, the Fourth. Caliph of Islam, addressed to Ashter Malik, the Governor of Egypt, which has direct bearing on the questions of qualifications, selection and emoluments of Judges which reads as follows:‑‑‑

 

“So far as dispensing of justice is concerned, you have to be very careful in selecting officers for the same. You must select people of excellent character, superior calibre and meritorious record. They must possess following qualifications. Abundance of litigations and complexity of cases should not make them lose their temper. When they realise that they have committed a mistake in judgment they should persist in it and should not try to justify it. When truth is made clear to them or when right path opens up before them, they should not consider it below their dignity to correct the mistake made or to undo the wrong done. They should not be corrupt, covetous or greedy. They should not be satisfied with ordinary enquiry or scrutiny of a case but scrupulously go through all the pros and cons, must examine every aspect of the problem carefully, and whenever and wherever they find doubtful and ambiguous points they must stop, go through further details, clear the points and only then proceed with their decisions. They must attach greatest importance to reasoning, arguments and proofs. They should not get tired with lengthy discussions and arguments. They must exhibit patience and perseverance in scanning the details, in testing the points presented as true and in sifting facts from fiction and when the truth presented it to them they must pass their judgments without fear, favour or prejudice. They should not develop vanity and conceit when compliments and praises are showered upon them. And they should not be misled by flattery and cajolery.

 

Pay them handsomely so that their needs are fully satisfied and they are not required to beg or borrow or resort to corruption. Give them such a prestige and position in your State that none of your courtiers or .officers can over lord them or bring harm to them. Let judiciary be above every kind of executive pressure or influence, above fear or favour, intrigue or corruption.”

 

22. From the abovequoted Verses from Holy Qur’an and other literature on the subject, inter alia the following is deducible:‑‑‑

 

(i)     That the Holy Quran repeatedly enjoins that one who believes in Allah, His Prophet Muhammad (p.b.u.h.), Qur’an and Surmah, should stand out firmly for justice, as witnesses to Allah, even as against himself or his parents, his kin, rich and poor;

 

(ii) that the hatred of others should not make you severe to wrong and depart from justice; 

 

(iii)   that the Judges are not to be lid by personal likes or dislikes, love or’ hate,

 

(iv)   that the Judges should maintain strict impartiality and even treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential;

 

(v)    to a Judge, all are equal in the eye of the law. As God dispenses justice among His subjects, so a Judge ‘Should judge without any distinction whatsoever;

 

(vi)   that a Judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and, when truth presented itself to them, he must pass judgments without fear, favour or prejudice;

 

(vii) that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than the merits is a great sin entailing severe punishment;

 

(viii) that while sele6ting Judges the Authority concerned should be very careful. It should select people of excellent character, superior calibre and meritorious record. Abundance of litigations and complexity of cases should hot make them lose their temper,

 

 (ix) that a Judge should not be corrupt, covetous or greedy:

 

(x)   that a Judge should be paid handsomely so that his needs are fully satisfied and he is not required to beg or borrow or resort to corruption;

 

(xi)  that a Judge must be a man of having deep insight, pro found knowledge of Shariah, Godfearing, forth right, honest, ‘sincere man of integrity;

 

(xii) that a Judge must be upright, sober, calm and cool., Nothing should ruffle his mind from the path of rectitude;

 

(xiii) that Judges should be given such a prestige and position in the State that none of the Government functionaries can over lord them or bring them harm.

 

23. Adverting to the above second peculiar feature that our country has Federal system of Government which is based on trichotomy of power, it may be observed that each organ, of the State is required to function/operate within the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. I may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. At this juncture, it may be stated that a written Constitution, is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people; Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court’s efforts should be to construe the same broadly, so that ‘it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.

 

24. The above principles will have to be kept in view while construing the, provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary.

 

25. (a) Adverting to the question of Constitutional conventions, it may be pertinent to know what is the meaning of a Constitutional convention and what is its legal status. In this behalf, it may be mentioned that AV. Dicey i n his well known treatise written by him in 1885, namely “An Introduction of the Study of the Law of the Constitution” has brought out a distinction between the Law of the Constitution and conventions of the Constitution as to the enforceability and nonenforceability in the Court as under:‑‑‑

 

“In an earlier part of this work stress was laid upon the essential distinction between the ‘law of the Constitution’, which, consisting (as it does) of rules enforced or recognised by the Courts makes up a body of ‘laws’ in the Proper sense of that term, and the conventions of the Constitution’, which consisting (as they do) maxims or precepts which. Are Of customs, practices, not enforced or recognised by the Courts, make up a body not of laws, but of Constitutional or political ethics; and it was further urged that the law, not the morality of the Constitution, forms the proper subject of legal’ study. In accordance with this view, the reader’s attention has been hitherto exclusively directed to the meaning and applications of two principles  which pervade the law of the Parliament and the Rule of Law.

 

However, at the same’ time, Dicey Constitutional conventions in his above book as follows:‑‑‑

 

“The conventional code of political morality is, as already pointed out, merely a body of maxims meant to secure respect for this principle. Of these maxims some indeed such, for example, as the rule that Parliament must be convoked at least once a year are so closely connected with the respect due to Parliamentary or national authority, that they will never be neglected by any one who is not ‘prepared to play tile part of  a revolutionist; such rules have received the undoubted stamp of national approval, and their observance is secured by the fact that whoever breaks or aids in break the find himself involved in a breach of law.,,

 

Constitution, namely, the Sovereignty of  recognised the importance of the  almost immediately

 

(b) After the above treatise of Dicey written in 1885, time, the Constitutional with the passage of conventions have acquired importance and recognition of the Courts. Sir W. Ivor ‘Jennings, in his treatise under the tile “The Law and the Constitution’ has defined the purpose or the Constitutional conventions as under:‑‑‑

 

“The short explanation of the Constitutional conventions is that they provide ‘ the flesh which clothes the dry bones of the law; they make the legal Constitution work, they keep it in touch with the growth of ideas, A Constitution does not work itself, it has to be worked by men. It is an instrument of national Cooperation, and the spirit of cooperation is as necessary as the instrument. The Constitutional Conventions are the rules elaborated for effecting that cooperation. Also, the effects of a Constitution must change with the changing circumstances of national life. New needs demand a new emphasis and a new orientation even when the law remains fixed. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they elaborate.

 

Sir William Holdsworth has explained these characteristics. ‘Conventions’ must grow up at all times and in all places where the powers of Government are vested in different persons or bodies where in other words there is a mixed Constitution. ‘The constituent parts of a State’, said Burke, ‘are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole State is bound to keep faith with separate communities’. Necessarily conventional rules spring up to regulate the working of the various parts of the Constitution, their relation to one another and to the subject. And not only will conventions spring up in these circumstances, but they will always have two common characteristics. In the first place, it is at these conventions that we must look if we would discover the manner in which the Constitution works in practice. They determine the manner in which the rules of law, which they presuppose, are applied, so that they are, in fact, the motive power of the Constitution. In the second place, these conventions are always directed to secure that the Constitution works in practice in accordance with the prevailing Constitutional theory of the time.

 

(c)K.C. Where, F.B.A. in his book under the caption “The Statute of Westminster and Dominion Status” Fifth Edition, has dilated on the question of convention as under:‑‑‑

 

“And, as M. de Fleuriau remarked: ‘Lly a du vrai dans cette boutade’. These nonlegal rules are given a variety of names, as has been indicated. It appears convenient to adopt two terms, usage and convention. By convention is meant an obligatory rule; by usage, a rule which is no more than the descriptionof a usual practice and which has not yet obtained obligatory force. A usage, after repeated adoption whenever a given set of circumstances recurs, may for a sufficient reason acquire obligatory force and thus become a convention. But conventions need not have a prior history as us ages. A convention may, if a sufficient reason exists, arise from a single precedent. Or again it may result from an agreement between the parties concerned, declared and accepted by them as binding ... ... .. ... ... ... ... ... ... ... .... ....  The two kinds of rule again may impinge upon each other in such a way that the operation of the rule of strict law is modified by the operation of the nonlegal rule. A power which, juridically, is conferred upon a person or body of persons may be transferred, guided, canalized. by the operation of nonillegal rules. In this way a nonlegal rule may decide the ends for which and the organs through which some power, which owes its existence to a rule of strict law, may properly be exercised. The rule of strict law is not completely nullified. It is combined with a nonlegal rule to make a new Constitutional rule. The working of the cabinet system in Britain illustrates this type of cooperation. The legal power in the hands of the King, by prerogative or under statute, to perform certain (not very extensive) functions in the administrative Government of the country is exercised, by usage and convention, through and on the advice of Ministers responsible to Parliament. In the same way the exercise of the legal executive powers of the President in France has, largely as the result of usage and convention, been transferred to ministers in Parliament, and the effective exercise of the legal power of the College of Electors in the United States to choose a president has been transferred to the electorate.

 

(d) The same author K.C, Wheare in his book under the title “Modem Constitutions” has dealt with the question of Constitutional conventions as under:‑‑‑

 

“The distinctions which have been drawn in the preceding paragraphs will be illustrated when we come to consider the various way4 in which usage and convention operate to affect the law of the Constitution. The first way in which usage and convention: show their effects is in nullifying a provision of a Constitution. This might be expressed by saying that convention paralyses the arm of the law. It is essential to stress that ‘ it does not amend or abolish the law. It does not impute the limb; it merely makes its use impossible. A wellknown example of this effect of convention is found in the fact that in many. Constitutions the legal power of the head of the State to veto or refuse his assent to laws passed by the Legislature is nullified by convention. In the Constitutions of Denmark, Norway, . and Sweden, the King is given certain powers to  refuse assent to bills passed by the Legislature, but in all three cases it is now agreed that he may not exercise these powers. The last occasion upon which the King of Denmark refused assent to a bill was in 1865, and although the King of Sweden vetoed a bill in 1912, he acted on that occasion upon the advice of his minister. In Holland and Belgium similarly the power of the monarch to veto legislation has been nullified by convention.

 

In the Constitutions of those members of the British Commonwealth which have retained the monarchical form of Government, it is usual to find powers granted either to the Queen or to her representative, the Governor General, to refuse his assent to a bill. In all these cases it is accepted that,, by convention, this power will not be exercised, “

 

(e) Reference may also be made to the book of Professor Colin R. Munror under the caption “Studies in Constitutional Law”, wherein he has dilated upon the question of Constitutional convention with reference to the views of various, authors and pointed out some of the Constitutional conventions obtaining in United States, Australia etc. It may be advantageous to reproduce the following passages from his above book:‑‑

 

“For example, in the United States, according, to the Constitution (Article 11 and Amendment XII), the President isindirectly elected by representatives of the States in electoral colleges. In practice, however, r, the President is elected by popular vote, and the members of the electoral colleges are obliged to cast their votes accordingly. In’ Australia, the Constitution provides for the appointment of the It GovernorGeneral by the Sovereign of the United Kingdom, but by conviction the Sovereign is obliged to act on the advice of the e Australian Prime Minister. If that is a straightforward convention, k, many others are not. The Australian GovernorGeneral in 1975, Sir 4 John Kerr, dismissed Mr. Gough Whitlam’s Government, on the e ground that, as it had been refused supply by the Senate, it did not it command the confidence of the Parliament, and should have resigned or r advised dissolution. However, his action was controversial, to say the e least, and in that Constitutional crisis there was ample scope for r debating whether the Prime Minister and the Governor General I respectively had acted consistently with, or contrary to, what I conventions required.

 

It is simply a. natural process for other rules and practices to develop alongside the laws of the Constitution. As Sir Ivor Jennings put it:

 

‘The laws provide only a framework; those who put the laws into operation give the framework a meaning and fill in the interstices. Those who take decisions create precedents which others tend to follow, and when they have been followed long enough they acquire the sanctity and the respectability of age. They not only are followed but they have to be followed . .......

 

 

In the same way, Dicey was concerned to demarcate the lawyer’s special preserve in the, study of the Constitution. He was fully aware that the rules of the Constitution comprised different classes, he conceded that some conventions and practices were as important as laws, and observed that ‘a lawyer cannot master even the legal side of the Constitution without paying some attention to the nature of those Constitutional understandings’, and he devoted Part III of Law of the Constitution to the discussion of conventions. It is quite unjust, although regrettably not unknown, for Dicey to be accused of promoting a narrowly legal approach to study. But he did say that the lawyer’s proper function was the exposition of legal rules, whereas with conventions or understandings he has no direct concern’.

 

However, his distinguishing between laws and conventions has been criticized. Unless the distinction is abandoned, according to one modem writer, ‘it is impossible to present Constitutional law as a coherent subject or relate it in a meaningful way to the functions it has to fulfill or the social and political context in which it has to operate’. To this it may be answered that if in fact laws and conventions are different in kind, then an accurate and meaningful picture of the Constitution will only be obtained if the distinction is made. If the distinction is bluffed, analysis of the Constitution is less complete, which cannot be to the benefit of lawyers or political scientists . ... ... ... ... ... ... ... ... ... ... ... The late professor J.D.B. Mitchell built up further arguments of this sort:

 

Conventions cannot be regarded as less important than rules of law. Often the legal rule is the less important. In relation to subjectmatter the two types of rule overlap: in form they are often not clearly distinguishable ... ... ... ... very many conventions are capable of being expressed with the precision of a rule of law, or of being incorporated into law. Precedent is an operative in the formation of convention as it is in that of law. It cannot be said that a rule of law is necessarily more certain than is a convention. It may therefore be asked whether it is right to distinguish law from convention ... ... .....

 

The Late O. Hood Phillips in his wellknown treatise under the caption “Constitutional and Administrative Law”, 7th Edition, has very exhaustively dealt with the question of Constitutional conventions as under:‑‑

 

“Importance of Constitutional conventions:

 

The word ‘conventions,’ as used by Constitutional lawyers, refers to rules of political practice which are regarded as binding by those whom they concern especially the Sovereign and statesmen but which would not be enforced by the Courts if the matter came before them. The lack of judicial enforcement distinguishes conventions from laws in the strict sense. This is an important formal distinction for the lawyer, though the politician may not be so interested in the distinction.

 

Privileges enforced by each House are also excluded from the definition of conventions.

 

Conventions are found to a greater or lesser extent in most countries that have written Constitutions. This is so not only in the Commonwealth countries but also, for example, in the United States. There the method of electing the President and the manner of choosing the President’s Cabinet are governed largely by convention. What is characteristic of the British Constitution is the extremely important part played by conventions. Not only do the British have no written Constitution, but they have been reluctant to stereotype their rules of Government in the form of statutes. Many important political developments have been effected since 1688 without recourse to legal forms at all. It is, Constitutional conventions that describe and explain how the Constitution works, how it lives and grows. Their general purpose is to adapt structure to function. In this way the strong monarchy of 1688 has become a limited monarchy with responsible parliamentary Government ... ... ... .....

 

“Purpose of Constitutional conventions:

 

Conventions are a means of bringing about Constitutional development without formal changes in the law. This they often do by regulating the exercise of a discretionary power conferred on the Crown by the law. It must not be supposed that conventions are peculiar to unwritten Constitutions. They are found to a greater or lesser extent in written Constitutions as well. Canada and Australia, for example, observe the main British Constitutional conventions, and many conventions have been developed in the United States relating to such matters as the method of electing the President, his choice and use of a Cabinet, and I senatorial courtesy’ in making appointments to office. This informal method of change is more adaptable than a series of statutes or Constitutional amendments. The general tendency is towards democracy, due regard being had to the protection of minorities and their right to be heard.

 

The ultimate object of most conventions is that public affairs should be conducted ‘in accordance with the wishes of the majority of the electors. The reason why the Ministry must be chosen from the party or parties enjoying a majority in the Commons is that, on the assumption that the majority of the Commons reflect the views of the majority of the electors . ... ... .. ...

 

(b) It will not be out of context to lift from para. 450 of the judgment o the Indian Supreme Court in the case of Supreme Court AdvocatesonRecord Association v. Union of India AIR 1994 SC 268 the then Indian President of the  Constituent Assembly Dr. Rajendra Prasad’s relevant portion of the speech delivered by him while moving bill for the adoption of Indian Constitution in 1950 which throws light on the importance of Constitutional conventions as under:‑‑

 

“We have prepared a democratic Constitution. But successful working of democratic institutions requires in those who have to work them willingness to respect the view points of others, capacity for compromise and accommodation. Many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. The way in which we have been able to draw this Constitution without taking recourse to voting and to divisions in lobbies strengthens that hope ... ... ... ... ... .. ... ... ... ... ... ... ... ... .

 

(g) I may also quote para. 368 from the above judgment of the Indian Supreme Court (Kuldip Singh’s opinion) which reads as under:‑‑‑

 

“368. We are of the view that there is no distinction between the ‘Constitutional law’ and an established ‘Constitutional convention’ and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the ‘Constitutional, law’ of the land and can be enforced in the like manner. “

 

26. (a) The President of the Supreme Court Bar Association, Mr. Muhammad Akrain Sheikh, has referred to the book under the title ‘Constitutional Conventions’ The Rules and Forms of Political Accountability by Geoffrey Marshall. He has also furnished photostat copy of seven pages relating to conventions without the title of the book (probably it is from the book under the title ‘Constitutional and Administrative Law’, Sixth Edition by Rodney Brazier. The relevant portion from the former book reads as under: ‑‑

 

“Thirdly, conventions may be the subject of enquiry in the course of statutory construction. The consideration of convention in British Coal Corporation v. The King (1935) AC 500 could be considered in this light. It led to the conclusion that in passing the Judicial Committee Act of 1833, Parliament had had a particular intention, namely to treat the Committee as being a judicial body because of the firmly established convention as to the way in which its advice was accepted by the Crown.

 

The relevant extracts from the latter book reads as follows: ‑‑

 

“These examples suggest that the distinction between law and convention is reasonably clear. But in a number of contexts the distinction is blurred. In particular, Dicey was exaggerating when he said that conventions were ‘not recognized’ by the Courts. The Courts do sometimes take cognizance of conventions; sometimes they use them  as aids to interpretation ...                                                                                                               ...                                                                                                                                       ...                                                                                                                                        

 

‘A striking illustration of a Constitutional convention having as much effect in practice as strict law comes from Canada. The Canadian Government sought patriation of the Constitution in the early 1980s, but agreement on the new settlement could not be reached with the provinces. When the Government decided to proceed without it some of the provinces challenged the legality of the Government’s actions in the Courts. The Supreme Court held that, although no rule of law existed which established provincial consent as a prerequisite to any Constitutional amendment, there was a convention that such consent would be obtained. The Government thereupon delayed its plans and held further negotiations in which nine of the ten provinces agreed to revise Federal proposals which formed the basis of Canada’s 1983 Constitution. “

 

(b) Mr. Riazul Hassan Gilani, learned Advocate Supreme Court who has appeared for Lahore High Court Bar Association, has dealt with exhaustively as to the legal status of conventions under the Islamic Jurisprudence. According to him, the conventions have binding force in Islam. He pointed out the factum that after the advent of Islam, the customs or us ages which were then prevalent inter alia in Arabian territory and which were not contrary to Islamic concept, were retained and were given binding legal effect. He has referred to the following books:‑‑

 

(i) Students EnglishArabic Dictionary. Second Edition printed by Catholic Press at Beirut.

 

Wherein at page 108 the words ‘convention’ and conventional’ are defined as under:‑‑

 

“Convention, n.    (Ittifaqia)(Motamer)

 

“Convention, adj,(Mutafiq alai estalahi )(Urfi)

 

(ii) (Al-ashbah-o-nazair az Al-Imam Jalal-ud-din Abdur Rehman Bin Abobaker siuti)

 

The relevant portion is: (Alsbit ashaia ad-i-hanfia wamalaikatihi-----wa kazalhanabilah)

 

Translation by Mr.Gilani,

 

The usage shall qualify the text.

 

The relevant portion is:‑‑”Quwaidul fiqa Al-mufti Muhammad Azeem-ul-Ehsan Almajdidi Albarkati”

 

Translation by Mr. Gilani:

 

‘177. The usage can qualify the text.

 

(v)   THE MEJELLE translated byC.R. Tyser, B.A.L. PresidentDistrict Court of Kyrenta and two others.

 

The relevant portions are:

 

‘37. The use of men is evidence according to which it is necessary to act.

 

43. A thing known by common usage is like a stipulation which has’ been made.

 

45. What is directed by custom is as though directed by law. See 2,’ C. L. R. 140. “

 

The relevant portion is:

 

(viii)The Principles of Muhammadan Jurisprudence (According to the Hanafi, Maliki. Shafi’s and Hanbali Schools) by Abdur Rahim, M.A., 1968 Edition.

 

“Section II Customs and Usages

 

Those. customs and usages of the people of Arabia, which were not expressly repealed during the lifetime of the Prophet, are held to have been sanctioned by the Lawgiver by His silence. Customs (‘urf ta’amul, ‘adat) generally as source of laws, are spoken of as having the force of Ijma’, and their validity is based on the same texts as the validity of the latter. It is laid down in ‘Hedaya’ that custom holds the same rank as ljma’ in the absence of an express text, and in another place in the same book, custom is spoken of as being the arbiter of analogy.”

 

(ix)   The case of Pakistan and others v. Public at Large and Others PLD 1987 SC 304:

 

wherein it has been retreated that in the case of Pakistan v. Public at Large (PLD 1986 SC 240) the Shariat Appellate Bench of this Court approved the use of Rules of Mas” and Urf amongst others. It is also held that if the controversy can be resolved by direct resort to Holy Qur’an and Sunnah, it is not necessary to invoke Rules of Masalah and Urf.

 

27. From the abovequoted treatises on the Constitutional Law and the wellknown books on the Islamic Jurisprudence, the following principles/inferences are deducible:‑‑

 

(i) That AV. Dicey in 1885 in his aforesaid treatise has brought out distinction between the Law of the Constitution consisting of Rules enforced or recognised by Courts and the Conventions of the Constitution consisting of customs, practice, maxims or precepts which are not enforced or recognised by the Courts. However, at the same time, he was of the view that the conventional code of political morality has been accepted and acted upon by the politicians and that their observance is secured by the fact that whoever breaks or aids in breaking them, will almost immediately find himself involved in a breach of law.

 

(ii)   Late O. Hood Philips in his aforementioned treatise under caption “Constitutional and Administrative Law”, in its earlier part quoted at page 56 herein above, which was relied upon by M/s. Qazi Jamil and Mr. Aitzaz Ahsan, has brought out the above distinction between Constitutional Law and Constitutional convention as to their enforceability and non enforceability through the Courts of law. But he did not adhere to the above view as in the latter part of the treatise it has been highlighted that Constitutional conventions are a means of bringing about Constitutional development without formal change I s in the law; this they often do by regulating the exercise of a discretionary power conferred on the Crown by the law. He also highlighted that the Constitutional conventions are not peculiar to unwritten Constitutions’ but they equally apply to the written Constitutions. He further opined that the ultimate object of most conventions is that public affairs should be conducted in accordance with the wishes of the majority of electors.

 

(iii)   Sir W. Ivor Jennings in his aforecited treatise observed that the short  explanation of the Constitutional conventions is that they provide the , flesh which clothes the dry bones of the law; they make the legal Constitution work; they keep in touch with the growth of ideas.

 

(iv)   Sir William Holdaworth was of the view that conventions must grow up at all times in all places where the powers of Government are vested in different persons or bodies.

 

(v)    The conventional rules spring up to regulate the working of various parts of the Constitution. They ensure that the Constitution works in practice in accordance with the prevailing Constitutional theory of the lime. They guide, canalise the exercise of power vested in the State functionaries.

 

(vi)   The Constitutional conventions can even nullify or paralyse a provision of the Constitution, for example, in many Constitutions, the legal power of the head of the State to veto or refuse his assent to laws passed by the Legislature is nullified by conventions like in ,Denmark, Norway and Sweden, where the Kings though have the power to refuse to give assent to any law but by virtue of conventions they refrain from doing so. Same is the case of Queen in England or her representative the GovernorGeneral in Australia.

 

(vii) That the Constitutional conventions may even change the mode of operation of a Constitutional provision, for example, in United States, according to the Constitution (Article 11 and Amendment XII) the President is indirectly elected by representatives of the State in electoral colleges but in practice the President is elected by popular votes and the members of electoral colleges are obliged to cast their votes accordingly. Similarly, in Australia, the Constitution provides for the appointment of GovernorGeneral by the Sovereign of the United Kingdom but by conventions the Sovereign is obliged to act on the advice of the Australian Prime Minister.

 

(viii)That in fact the Courts accord the recognition to Constitutional conventions either by pressing into service the same while construing a Constitutional provision or by giving effect to a convention in the absence of any express provision in the Constitution as the Supreme Court of Canada did in early 1980 when it held that although no rule of law existed which established provincial consent as a prerequisite to any Constitutional amendment but there was a convention that such consent would be obtained. As a result of the above judgment, the Government delayed its plan to carry out the amendment and entered into further negotiations and resolved the matter by consensus of nine out of ten Provinces.

 

(ix)   That the convention is recognised and has legal binding force under the Islamic Jurisprudence as is evident from the abovequoted portions of aforesaid books/treatises on Islamic Jurisprudence.

 

28. This Court has also affirmed the factum that conventions under Islamic Jurisprudence have the force of law inter alia in the above case of Pakistan and others v. PublicatLarge. This seems to be also in consonance with Article 8 of the Constitution, clause (1) of which brackets “custom or usage” with law by .providing any law or any custom or usage having the force of law in so far as it is inconsistent with the rights conferred by this Chapter shall to the extent of such inconsistency be void. The above Chapter relates to the Fundamental Rights. In other words, the above clause (1) of Article 8 of the Constitution is founded on the assumption that custom or usage has the force of law as the law has itself but they will not be enforced to the extent of inconsistency with the Fundamental Rights.

 

29. I am inclined to hold that the distinction which was brought out by A.V. Dicey in 1885 between laws and conventions as to the enforcibility and nonenforcibility by the Courts is no longer holding the field. With the passage  of time, the other eminent Jurists have not adhered to the above distinction.  They have emphasis  the importance of the Constitutional conventions for’  proper operating/functioning of the Constitutions. Jennings has put it very beautifully by explaining that the Constitutional conventions provide “flesh which clothes the dry bones of the law; they make the legal Constitution work; they keep in touch with the growth of ideas”. The above view has been reiterated by the other Professors/Jurists of international repute. Even the President of Indian Constituent Assembly, Dr. Rajendra Prasad, while introducing a bill for the adoption of Indian Constitution in 1950, pointed out in his speech that many things which cannot be written in a Constitution are done by conventions Let me hope that we shall show those capacities and develop those conventions”. The Indian Supreme Court, after reviewing the treatises on Constitutional law and the caselaw in the caseof Supreme Court AdvocatesonRecord Association (supra) has held that there is no distinction between the “Constitutional law” and an established “Constitutional convention” and both are binding in the field of their operation. I am also of the view that the Courts, while construing a Constitutional provision, can press into service an established Constitutional convention in order to understand the import and the working of the same, if it is not contrary to, the express provision of the Constitution.

 

It is also evident that under Islamic Jurisprudence, the conventions which were not contrary to Holy Qur’an and Sunnah, were recognised from the very inception and they were given binding effect. In this view of the matter, it will be appropriate to refer to the relevant conventions, if any, while construing various Constitutional provisions relating to the Judiciary.

 

30. I intend to take up the first question referred to in para. 17 herein above at a later stage. I may revert to the second question contained therein as to the import of the words “after consultation” used in Article 177 and Article 193 of the Constitution and the question, as to what extent the President is bound to accept the opinion of the Chief Justice of Pakistan and/or the Chief Justices of the High Courts while making appointments under the above provisions of the Constitution. The thrust of the arguments of Messrs Khan and Raja Muhammad Akram, learned counsel for the appellants/petitioners was that the Chief Justice’s opinion has primacy and that without it, there cannot be any independent Judiciary. According to Mr. Khan, the Chief Justice of Pakistan before making any recommendation should consult the Supreme Judicial Council constituted under Article 209 of the Constitution in order to have institutional opinion.

 

Mr. Qazi Muhammad Jamil, learned AttorneyGeneral, on Court’s notice and Messrs Yahya Bakhtiar and Aitzaz Ahsan appearing for the Federation, contended that the appointment of a Judge of a superior Court is an executive act which is to be executed by the President and though the Chief Justice of Pakistan’s views should be invariably accepted by the President but it has no binding effect and, therefore, can even be ignored without recording any reason. According to them, the appointment of the Judges of the superior Courts has no nexus with the independence of Judiciary as the question, whether a Judge is independent or not, arises after his appointment. They were of the view that this is so under the Constitutional scheme in order to keep the Chief Justice of Pakistan out of politics and public criticism and that the Executive is answerable to the parliament whereas the Chief Justice is not answerable.

 

Messrs Muhammad Akrarn Sheikh and Riazul Hassan Gilani adopted the above line of arguments advanced by Mr. Raja Muhammad Akram. Whereas Mr. Fakhruddin G. Ebrahim urged that the Chief Justice of Pakistan’s opinion does not have any primacy but his opinion should not be ignored by the President without recording cogent reasons. Mr. S.M. Zafar’s submission was that though the President is not bound to act upon the opinion of the Chief Justice of Pakistan, but the Chief Justice’s negative opinion has supremacy inasmuch as a person, who is found to be unfit by the Chief Justice of Pakistan for appointment as a Judge of a High Court or the Supreme Court, cannot be appointed by the President. Mr. S. Sharifuddin Pirzada, after tracing the Constitutional history of IndoPak from. 1861 up to 1947 in respect of the Judiciary, submitted that the relevant Articles of the Constitution relating to the Judiciary must be read in its context and its colour and contents should be derived from its context. According to him, the consultation between the President and the other Constitutional functionaries referred to in the Constitution is not merely a formality but it is a mandatory requirement and it has to be full, effective and meaningful. His further submission was that the opinion of the Chief Justice of Pakistan is entitled to primacy and that the supremacy in this behalf does not vest in the Executive and the rejection of his advice would ordinarily be regarded as prompted by oblique consideration vitiating the order. His alternate submission was that cogent and strong reasons must be given by the President for disagreement, which will be open to judicial review.

 

All the learned counsel appearing as amicus curiae urged that there is a direct nexus between the mode of appointments of the Judges and the independence of Judiciary. There was also unanimity among them that the appointment of the Judges of the superior Courts does not involve any political process and that since the conduct of a Judge cannot be discussed in the Parliament by virtue of Article 68 of the Constitution, the question of accountability of the Executive to the Parliament in regard to the appointments of Judges of the superior Courts is not involved.

 

31. It may be pertinent to observe that first statute on the ‘subject enforced in India was the Indian High Courts Act, 1861, which envisaged the establishment of a High Court of Judicature at Fort William in Ningal and High Courts at the Presidencies of Madras and Bombay. The Chief Justice and Judges were to be appointed by the Crown and they were to hold their office during pleasure of the Crown. This position continued under the Indian High Courts Act, 1911, though some other Courts were established in the meanwhile. Whereas under the Government of India Act, 1935, the appointment of Judges of the superior Courts remained a matter of pleasure of the Crown but the Judges were given security of tenure up to the age of superannuation mentioned therein. The procedure obtaining 6efore the Independence of IndoPak was that Governor of a Province acting in an individual capacity after consulting the Chief Justice of the High Court concerned used to make his recommendations direct to the GovernorGeneral and in turn he used to advise the King through the Secretary of State of India. On the basis of the above advice the appointments were used to be made by the Crown. The above position continued in India till the Home Ministry issued a memo. dated 4111947 providing the procedure for appointment of High Court Judges, under which the Chief Minister of a State .acting in consultation with the Home Minister of the State concerned was to send his recommendations to the Home Minister in the Centre. When the above memo. was circulated inter alia among the High Courts of India, the then Chief Justice of Madras, Sir Frederick Gentle, put forward this as one of the reasons for resigning from his post. Sir Archibald Nye, Governor of Madras, also protested. Both were of the view that the above appointment procedure would lead to political jobbery and would affect the independence of judiciary. To consider the above memo., a Conference of Chief Justices of High Courts of India was held on 2631948. A~ a result of the above conference, a number of recommendations were made which inter alia included a suggestion that “every Judge of the High Court should be appointed by the President by a warrant under his hand and seal on the recommendation of Chief Justice of, the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India”. The above suggestions were not accepted by the Government. However, the framers of Indian Constitution, while framing it, provided that the appointments in the Supreme Court are to be made after consultation by the President with the Chief Justice of India and such other Judges of the Supreme Court and of the High Courts in the States as he may deem necessary (Article 124 of the Indian Constitution) and of the High Courts after consultation with the Chief Justice of the High Court concerned and the Chief Justice of India besides consulting the Governor concerned (Article 217 of the Indian Constitution).

 

32. The controversy as to the import of the words “after consultation” with the Chief Justice inter alia had come up in the case of S.P. Gupta and others v. President of India and others (AIR 1982 SC 149) and finally in the case of Supreme Court AdvocatesonRecord Association v. Union of India (supra).

 

In Pakistan, the provisions of subsection (2) of section 220 of the Government of India Act, 1935, by virtue of Adoption Order, 1947, were followed till the framing of’1956 Constitution. It may be observed that in 1956 and 1962 Constitutions as well as 1972 Interim Constitution and the present Constitution of 1973, the relevant Articles envisage the appointment of the Supreme Court Judges by the President after consultation with the Chief Justice of Pakistan, whereas for the High Courts after consultation with the Chief Justice of Pakistan, with the Governor concerned and with the Chief Justice of the High Court concerned.

 

33. In India the controversy arose inter alia on the question, as to whether the opinion of the Indian Chief Justice has primacy over the opinion of other Constitutional functionaries, inter alia in the case of S.P. Gupta (supra). The majority consisting of Bhagwati, Desai, S.M.F. Ali and Venkataramiah, JJ. held against the primacy though they were of the view that the consultation contemplated by the Constitution must be fall and effective and by convention the views of the concerned Chief Justice and Chief Justice of India should also always prevail unless there are exceptional circumstances which may impel the President to disagree with the advice given by the above Constitutional authorities. Desai, J. in his opinion opined that independence of judiciary under the Constitution has to be interpreted within the framework and parameters of the Constitution and that there are various provisions in the Constitution which indicate that the Constitution has not provided something “hands off” attitude. P.N. Bhagwati, J., while concurring with the opinion of S.M.F. Ali J., opined that clause (1) of Article 217 provides that the appointment of a High Court Judge shall be made after consultation with all the three Constitutional functionaries without assigning superiority to the opinion of one over that of another. He further opined that “it is true that the Chief Justice of India is the head of the Indian Judiciary and may be figuratively paterfamilias of the brotherhood Judges but the Chief Justice of a High Court is also an equally important Constitutional functionary and it is not possible to say so far as the consultation process is concerned, in any way, less important than the Chief Justice of India”. The other questions as to the right of Additional Judges and the validity of transfer of certain High Court Judges were also considered. At this stage, it is not necessary to refer the same.

 

34. It seems that a Bench comprising Ranganath Misra, C.J. M.N. Venkatachaliah and M.M. Punshhi, JJ. in the case of Subhesh Sharma, petitioner v. Union of India, Respondent and Supreme Court Advocateson Record Association and another Petitioners v. Union of India (through its Secretary, Ministry of Law and Justice), Respondent, and Firdaus Taleyarkhan Petitioner v. Union of India and another Respondents (AIR 1991 SC 63 1) was of the view that the majority opinion in the case of S.P. Gupta (supra) not only seriously detracts from and denudes the primacy of the position implicit under the Constitutional scheme, of the Chief Justice of India, in the consultative process but also whittles down the very significance of “consultation” as required to be understood in the Constitutional scheme and context. They. were, therefore, of the view that the matter required reconsideration recommended the constitution of a larger Bench to reconsider the view taken in S.P. Gupta’s case on two points as under:‑‑

 

“44. Judicial Review is a part of the basic Constitutional structure and one of the basic features of the essential Indian Constitutional policy. This essential Constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate. On the contrary what is necessary is an interpretation sustaining the strength and vitality of Judicial Review.

 

46. The correctness of the opinion of the majority in S.P. Gupta’s case (AIR 1982 SC 149), relating to the state is an importance of consultation, the primacy of the position of the Chief Justice of India and the view that the fixation of Judgestrength is not justifiable should be reconsidered by a larger Bench.

 

35.   As a result of the above reference made by the aforesaid Judges, the aforementioned points came up for consideration before a larger Bench consisting of nine Judges which resulted in the above judgment in the case of Supreme Court AdvocatesonRecord Association and another Petitioner v. Union of India Respondent (supra). In the said case elaborate arguments were advanced by the lawyers of standing/repute for and against the question of primacy. The majority of the Judges comprising seven Judges held inter alia that the Chief Justice of India’s opinion has primacy in the matter of appointments of the High Court and Supreme Court Judges. “

 

J.S. Verma, J., who wrote his opinion for himself and also on behalf of his four learned brothren, namely, Yogeshwar Dayal, G.N. Ray, A.S. Anand and S.P. Bharucha, JJ. recorded inter alia the following reasons for the majority for holding that the Chief Justice of India’s opinion has primacy:‑‑

 

“474. It is obvious, that the provision for consultation pith the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior Judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a Judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice ‘of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the Constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word I consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as an individual, muchless to the executive, which earlier had absolute discretion under the Government of India Acts.

 

 475. The primary aimniust be to reach an agreed decision I taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reasons indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.

 

480. However, it needs hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.”

 

He concluded as under:

 

“501. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high Constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The hereinafter mentioned norms emerging from the actual practice and crystallised into conventions not exhaustive are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers.

 

Appointments:

 

What is the meaning of the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’?

 

This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.

 

In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one of more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court.

 

The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity.

 

(2) The Chief Justice of India can recommend the initial appointment of a person to a High Court other than that for which the proposal was initiated, provided that the Constitutional requirements are satisfied.

 

(3)  Inter se seniority amongst Judges in their combined seniority on all ­India basis is of admitted significance in the matter of future prospects. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar significance. It is, therefore, reasonable that ‘this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court. Apart from recognising the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court. The likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented.

 

(4)    Due consideration of every legitimate expectation in the decision ­making process is a requirement of the rule of nonarbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court. Obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India, for appointment to the Supreme Court. Just as a High Court Judge at the time of his initial appointment has the legitimate expectation to become Chief Justice of a High Court in his turn in the ordinary course, he has the legitimate expectation to be considered for appointment to the Supreme Court in his turn, according to his seniority.

 

This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee. Alongwith other factors, such as, proper representation of all sections of the people from all parts of the country, legitimate expectation of the suitable and equally meritorious Judges to be considered in their turn is a relevant factor for due consideration while making the choice of the most suitable and meritorious amongst them, the outweighing consideration being merit, to select the best available for the Apex Court.

 

(5) 1 The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(l), so given, has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Court, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated.

 

(6)’   The distinction between making an appointment in conformity with the opinion of the Chief Justice of India, and not making an appointment recommended by the Chief Justice of India has to be borne in mind. Even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice of India, yet in an exceptional

 

 

case, where the facts justify, a recommendee of, the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed except in the situation indicated later. Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits nonappointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter.

 

It is only to this limited extent of nonappointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the Courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the Judiciary and the appointment of the best men available with undoubted credentials.

 

(7)    Nonappointment of anyone recommended, on the ground of unsuitability, must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-­appointment of that person, for reasons to be recorded, may be permissible in the public interest. If the nonappointment in a case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.

 

(8) Some instances when nonappointment is permitted and justified may be given. Suppose the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reasons, which are accepted by the President, then the nonappointment of the candidate recommended by the Chief Justice of India would be permissible. Similarly, when the recommendation is for appointment to a High Court and the opinion of the Chief Justice of the High Court conflicts with that of the Chief Justice of India, the non  appointment, for valid reasons to be recorded and communicated to the Chief Justice of India, would be permissible. If the tenure as a Judge of the candidate is likely to be unduly short, the appointment may not be made. Nonappointment for reasons of doubtful antecedents relating to conduct, would also be permissible. The condition of health or any such factor relating to the fitness of the candidate for the office, may also justify nonappointment.

 

(9)    In order to ensure effective consultation between all the Constitutional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to High Court, and the Chief Justice of India’ in all cases, must transmit with his opinion the opinions of all Judges consulted by him, as a part of the record.

 

Expression of opinion in writing is an inbuilt check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The final opinion of the Chief Justice of India, given after such effective consultation between the Constitutional functionaries, has primacy in the manner indicated.

 

(10) To achieve this purpose, and to give legitimacy and greater credibility to the process of appointment, the process must be initiated by the Chief Justice of India in the case of the Supreme Court, and the Chief Justice of the High Court in the case of the High Courts. This is the general practice prevailing, by convention, followed over the years, and continues to be the general rule even now, after S.P. Gupta. The executive itself has not understood the correct procedure, notwithstanding consonance with the concept of the independence of the Judiciary.

 

(11) The Constitutional functionary meant by the expression ‘Governor’ in Article 2170), is the Governor acting on the ‘aid and advice’ of his Council of Ministers in accordance with Article 163(l) read with Articles 166(3) and 167.

 

(12) Adherence to a timebound schedule would prevent any undue delay and avoid dilatory methods in the appointment process. On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, failure of any other Constitutional functionary to express its opinion within the specified period should be construed to mean the deemed agreement of that functionary with the recommendation, and the President is expected to make the appointment in accordance with the final opinion of the Chief Justice of India. In such a situation, after expiry of the specified time within which all the Constitutional functionaries are to give their opinion, the Chief Justice of India is expected to request the President to make the appointment without any further delay, the process of consultation being complete.

 

(13) On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, copies thereof should be sent simultaneously to all the other Constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken. It is appropriate that a memorandum of procedure be issued by the Government of India to this effect, after consulting the Chief Justice of India, and with the modifications, if any, suggested by the Chief Justice of India to effectuate the purpose.

 

(14) The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. This schedule should be followed strictly and invariably in the appointment of the Chief Justices of the High Courts and the Chief Justice of India, to avoid the institution being rendered headless for any significant period. In the case of appointment of the Chief Justice of a High Court to the Supreme Court, the appointment of the successor Chief Justice in the High Court should be made ordinarily within one month of the vacancy.

 

(15) Apart from the two wellknown departures, appointments to the office of Chief Justice of India have, by convention, been of the senior most Judge of the Supreme Court considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India. The provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, it there be any doubt ‘ about the fitness of the senior most Judge tohold the office which alone may permit and justify a departure from the longstanding convention. For this reason, no other substantive consultative process is involved. There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.”

 

As regards the accountability of the Executive to the people in the matter of appointment of Judges of the superior Courts, the contention of the learned counsel for the Executive, was repelled by J.S. Verma J., as under:‑‑

 

“478. The majority view in S.P. Gupta to the effect that the executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which vanishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the Legislature on account of the restriction imposed ‘by Articles 121 and 211 of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual Judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the Courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the Courts. Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the Courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable. Thus, in actual practice, the, real accountability in the matter of appointments of superior Judges is of the Chief Justice of India and the Chief Justices of the High Courts, and not of the executive which has always held out, as it did even at the hearing before us, that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India.

 

36. In the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404, which related to the enforcement of Article 175 of the Constitution as to the separation of Judiciary from Executive and which was decided by a Bench comprising the Chief Justice and six Judges, the question of appointment of Judges of the superior Courts came up for discussion with reference to the words “after consultation” and in this regard the following observations were made by me: ‑‑

 

“As regards the appointments of the Judges to the superior Courts, it was vehemently urged by Mr. Sharaf Faridi that the appointments should be solely made on the recommendations of the Chief Justice of Pakistan and the Chief Justice of the High Court concerned and that there should not be any say in the above matter of the Executive. It was also submitted by him that since under Articles 188, 182, the appointments of the Chief Justice of Pakistan and the Judges of the Supreme Court are to be made by the President and so also of the Chief Justice and the Judges of the High Courts under Articles 193 and 196 of the Constitution, the advice of the Prime Minister contemplated in Article 48 is not required and that such advice will militate against the concept of the separation and independence of the judiciary. Reliance was placed on an unreported judgment, dated 21121988 given by a Division Bench of the Lahore High Court in Petition No.810 of 1988 holding that the appointment of 11 Additional Judges to the said High Court without advice of the Prime Minister was legal. In this regard, it may be stated that the above Articles 177, 188, 193 and 196 of the Constitution are in their original form except as to the appointment of an Acting Chief Justice of the High Court. In my view, it is not necessary to examine the above question any further in the instant cases. However, it will suffice to observe that the consultation, with the Chief Justice of Pakistan and the Chief Justice of the High Court concerned by the President should be meaningful as observed in the abovecited Indian Supreme Court cases.”

 

37. The endurance of Mr. Fakhruddin G. Ebrahim was that the view taken in S.P. Gupta’s case is a correct view. According to him, the President should record reasons for not accepting the opinion of the Chief Justice of Pakistan and if the rejection of the opinion would be on extraneous considerations, the same would be justiciable. He has also highlighted the factum that under Article 124 of the Indian Constitution, for the appointment of Judges of the Supreme Court, it is not only the opinion of the Chief Justice of India to be obtained but the President is expected to obtain the views of some of the Judges of the Supreme Court and of the High Courts in the States which he may deem necessary and, therefore, the consultation process is an institutional and not an individual.

 

38. Mr. Qazi Muhammad Jamil, learned AttorneyGeneral, and Messrs Yahya Bakhtiar and Aitzaz Ahsan had submitted that the view found favour with the majority of the learned Judges in the case of Supreme Court Advocateson-­Record Association (supra) is not sustainable inter alia for the reason that while the debate on the bill relating to the Indian Constitution was going on in 1950, the amendment was sought to be made in clause (2) of Article 103 of the Constitution for substituting the word “concurrence” in place of theword “consultation” which was rejected. Mr. Qazi Muhammad Jamil has ‘ referred to the following paras from the judgment in the case of Supreme Court Advocates-­onRecord Association (supra), which read as under:‑‑

 

“57. Shri B. Pocker Sahib moved the following amendment to Article 103: (2) Every Judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice o India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the Judges of the Supreme Court and the Chief Justices of the High Courts in the States and every Judge of the Supreme Court shall hold office until he attains the age of sixtyeight years.

 

58. Similarly, Mr. Mahboob Ali Baig Sahib proposed the following amendment:

 

“That in the first proviso to clause (2) of Article 103, for the word ‘the Chief Justice of India shall always be consulted’, the words  shall be made with the concurrence of the Chief Justice of India’ be substituted. “

 

159. To the draft Article 193 with the respect to the appointment of High Court Judges, Mr. S. Pocker Sahib suggested the following amendments:

 

(1) Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court concerned after consultation with the Governor of the State concerned and with the concurrence of the Chief Justice of India and shall hold office until he attains the age of sixty­three years.

 

160. All the above amendments were rejected after a long deliberation in the Constituent Assembly. Mr. Parasaran urges that when those amendments expressly providing for the concurrence of the C.J,.I. were rejected and the present Articles 124 and 217 have been enacted placing all the Constitutional functionaries including the C.J.I. as only consultees, no interpretation can be justifiably given that consultation with the C.J.I. must be given primacy. According to him, if such a Construction is given to the word ‘consultation’, we would be rewriting the Articles. Then he cites an observation from the Special Courts Bill (1979) 2 SCR 476; (AIR 1979 SC 478) wherein the word ‘consultation’ was not construed as ‘concurrence’ but only as ‘consultation’ as ruled in Sankal Chand AIR 1977 SC 2328. That observation reads thus:

 

“.... .... the process of consultation has its own limitation and they are quite wellknown. The obligation to consult may not necessarily act as a check on the executive: ......”

 

39. The learned counsel appearing as amicus curiae urged that the primacy should be given to the views of the Chief Justice of Pakistan inter alia for the following reasons:‑‑

 

(i)     That there is a wellestablished convention that the view of the Chief Justice of Pakistan has invariably been accepted in the appointments of Judges of the superior Courts for a quite long period.

 

(ii)   That under the Islamic Jurisprudence, a wellestablished convention is binding and so also the opinion rendered by a consultee and that, in any case, the office of the Chief Justice of Pakistan carries with it the implied power to appoint the Judges in the superior judiciary.

 

(iii)   That the independence of judiciary as enshrined in the Objectives Resolution, which is now part of the Constitution by virtue of Article 2A thereof, cannot be achieved if the appointments are left in the hands of the executive nor the concept of separation of judiciary from executive, as envisaged by Article 175 of the Constitution, can be fulfilled.”

 

40. Mr. Qazi Muhammad Jamil, learned AttorneyGeneral, and Messrs Yahya Bakhtiar and Aitzaz Ahsan have referred to a number of foreign publications pertaining to the appointments of Judges including of the Supreme Court of United States and of the Judiciary in United Kingdom in order to demonstrate as under:‑‑

 

(i)    That the power to appoint Judges is an executive power, which cannot  be exercised by the judiciary.

 

(ii)   That the process of appointment of Judges is an intensely a political  process.

 

(iii)   That in U.S.A. as well as in U.K. the persons having political affiliation have consistently been elevated to the Bench.

 

(iv)   That the actual experience as a practising Advocate has not been considered as a prerequisite for appointment of Judges in U.S.A. and U.K.

 

              (41)(a) Mr. Qazi Muhammad Jamil, learned Attorney-General has referred to the following passages from the following books:‑‑

 

(i)    Corpus Juris Secundum. Volume 48A:

 

“The power to select Judges, like all other powers, is derived from the people, and Constitutional or statutory provisions transferring the direct selection of Judges from the people should be plain and unambiguous. It can be exercised only by the statutory to whom it is so given, and cannot be delegated; and any encroachment thereon is void.

 

Time of selection: Selection to a judicial office must be held at the time provided by law. In accordance with Constitutional provisions, the Legislature may have the power to specify the time for the selection. A law which unnecessarily postpones the right to elect a Judge has been held to be unconstitutional.

 

A person cannot beselected to a judicial office which does not exist at the time of the selection, but he may be nominated to fill an office when it comes into existence at a future date.

 

A State has the power to prescribe the manner or method in which Judges are to be selected, and such manner or method must be in accordance with law. It is generally not within the province of the judiciary to determine the manner or method of selecting Judges, and to the extent to which the Constitution is silent on the subject, or expressly delegates the power to the Legislature, the determination thereof is often within the province of the Legislature, particularly where the office of Judges is created by the Legislature.”

 

(ii) O. Hood Phillil?s’ Constitutional and Administrative Law. Seventh Edition:

 

“Appointment of Judges:

 

The appointment of Judges by the sovereign is now largely governed by statute, supplemented by convention.

 

The sovereign appoints the lords of appeal in Ordinary, the Master of the Rolls, the President of the Family Division, the ViceChancellor and the Lords Justices of Appeal, by convention on the advice of the Prime Minister, who consult the Lord Chancellor. The Queen appoints the puisne Judges of the High Court by convention on the advice of the Lord Chancellor, who no doubt consults the Prime Minister. The Queen on the recommendation of the Lord Chancellor also appoints Circuit Judges to serve in the Crown Court and county Court, and Recorders to act as parttime Judges of the Crown Court. Stipendiary Magistrates are Appointed by the Crown on the advice of the Lord. “

 

He has also referred to the Stroud’s Judicial Dictionary, Volume 1, Fourth Edition, for the definition of the word “consultation”, which reads as follows:‑‑

 

“Consultation     (New Towns Act 1946, (C.68), SA(l), “consultation with any local authorities”. “Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice” Per Bucknill L.J. in Rollo v. Minister of Town and Country Planning (1948) 1 All E.R. 13. 13, C.A.; see also Fletcher v. Minister of Town and Country Planning (1947) 2 All E.R. 946. (2) “Consultation so far as practicable ... with the ... parochial church councils” (Pastoral Reorganization Measure 1949 (No.3), S.3(l) means that a full and sufficient opportunity for the members of the council to ask questions and to submit their opinions in any reasonable way should be given (re: Union of Benefices of Whippingham and East Cowes, St. James (1954) A.C. 245.

 

(3)   Correspondence in which the Minister of Local Government gave a clear invitation to a local authority to express its views on a clear proposal was a “consultation” within section 73(l) of the Mauritius Local Government Ordinance, 1962 (No. 16) (Port Louis Corporation v. A.G. (Mauritius) (1965) A. C. 11.11). “

 

(b) Mr. Yahya Bakhtiar has referred to the following passages from the following books:‑‑

 

Modem Politics and Government by Alan R. Ball, Third Edition:

 

“As John Schmidhauser has pointed out, states background in the appointment of American Supreme Court Judges is important, persons coming from northwestern European ethnic groups, which in American terms indicates roughly middle and uppermiddle cases. Nearly all the Judges of the Court have had strong political commitments before appointment, but in place of class background (or because of it) and varying political backgrounds and levels of political partisanship, the Court has in recent years been more liberal on many matters, including civil rights and the race question, than, other more representative parts of the American political process. Chief Justice Warren, appointed by President Eisenhower in 1953, was expected to reflect more conservatism in these areas, but instead, until his retirement in 1968 ......

 

(ii) Paper under the caption “The Organization of the Judiciary” on which the President Roosevelt gave a radio talk on 9731937, in which he inter alia observed as follows:‑‑

 

“The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress a super Legislature, as one of the justices has called it reading into the Constitution words and implications which are not there, and, which were never intended to be there.

 

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution not over it. In our Courts we want a Government of laws and not of men.

 

I want as all Americans want an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written that will refuse to amend the Constitution by the arbitrary exercise of judicial power amendment by judicial sayso. It does not mean a judiciary so independent that it can deny the existence of facts universally recognised.”

 

“(iii) The Position of the Judiciary under the Constitution of India comprising Sir Chimanlal Setalvad Lectures by H.M. Seervai:

 

The reference to President Roosevelt’s Court packing plan would suggest that Roosevelt was the first President to attempt to pack the U.S. Supreme Court, but it may come as a surprise to most of you to realise that the U.S. Supreme Court has always been packed. In his history of the Supreme Court, Prof. Preffer quotes from a letter to a friend which President Lincoln explained the factors which he considered in selecting a successor to Chief Justice Taney. Lincoln said that we would not ask to man how he would decide cases. If we did ask, and he answered us, we would despise him. Therefore, we must appoint a man whose opinions are known.

 

(c) Mr. Aitzaz Ahsan has referred inter alia to the following passages from the books mentioned hereinbelow:‑‑

 

(i) Comparing Constitutions by S.E. Finer, Vernon Bogdanor and Bernard Rudden. 1955 Edition:

 

131. Judicial Independence.‑‑The independence of the Judiciary from the pressures of both the legislative and the executive branches of Government is a cardinal entailment of the doctrine of the separation of powers. In many democracies, including Britain, Judges of the High Courts and sometimes of all Courts (for example, in Britain, France, and Germany) are appointed. In the last three countries mentioned, it is the executive branch that appoints. In the U.S.A. it is the President, but by and with the consent of the Senate. Thus, in all these instances the appointment is in the hands of a politically charged body. How then is the independence of the judiciary secured?

 

132. The answer lies in the respective provisions for payment and for removal. The principle seems to be that though a Judge may be appointed by the executive, he or she shall not or not easily be removed by it. Thus, the German Constitution provides (Articles 97) that the Judges cannot be dismissed ‘except by virtue of a judicial decision’, and under this is subsumed removal by the process of impeachment (Article 98). The French Constitution declares that ‘Judges shall be irremovable (Article 64) and that disciplinary proceedings must take place in the Council Superieur de la Magistrature. It must be remembered, however, that in these two countries, as in all civil law countries, Judges are civil servants. In the U.S.A., a common law country like Britain, the Judges are appointed during good behaviour, their salaries may not be tampered with, but they may be impeached before the Senate for misconduct. “

 

(ii)   Constitutional Dialogues: Inte1pretation as Political Process by Louis Fisher:

 

Subjecting federal Judges to presidential nomination and Senate confirmation creates an intensely political process. Appointments to the Supreme Court are highly political appointments by the nation’s chief political figure to a highly political body. From an early date, Senators wielded considerable power in choosing nominees for federal Judgeships. Members of the Supreme Court (especially Chief Justice Tart) have lobbied vigorously for their candidates. Other sectors of Government are active. An unusually candid Judges remarked:

 

“A Judge is a lawyer who knew a ‘Governor. Private organizations participate. The American Bar Association (A.B.A.) organized in 1976, plays a key role. Its influence increased during the Truman administration when it established a special committee to judge the professional qualifications of candidates. Acting on names submitted by the AttorneyGeneral, the committee informs the Chairman of the Senate Judiciary Committee whether a nominee to the Supreme Court fits the category of ‘wellqualified’, ‘not opposed’, or ‘not qualified’. The A.B.A. categories for the lower Courts are exceptionally well­-qualified, ‘wellqualified’, ‘qualified’ or ‘not qualified’. ...

 

“There is no agreement on the qualifications appropriate for judicial appointments. Two giants on the Supreme Court, Oliver Wendell Holmes and Benjamin Cardozo, had years of experience as State Judges. The ‘greatness’ of the Supreme Court Justice, however, does not seem to depend on prior judicial experience. Some of the most prominent members of the Court, including John Marshall, Joseph Story, Samuel Miller, Charles Evans Hughes, Louis D. Brandeis,

 

Harlan F. Stone, Hugo Black, William O. Douglas, Robert H. Jackson, Felix Frankfurter, and Earl Warren, had, no previous experience either as a State or Federal Judges. Justice Frankfurter believed that it could be said ‘without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero’. Competence turns less on technical mastery than, on experience in public affairs and broad political understanding.” ;

 

(iii) American Constitutional Law by Louis Fisher:

 

“Changes in the Court’s composition enable it to incorporate contemporary ideas and attitudes. Justice Jackson denied that this fact did any violence to the notion of an independent, nonpolitical judiciary; let us not deceive ourselves; longsustained public opinion does influence the process of Constitutional interpretation. Each new member of the everchanging personal of our Courts brings to his task the assumptions, and accustomed thought of a later period. The practical play of the forces of politics is such that judicial power has often delayed but never permanently defeated the persistent will of a substantial majority”.. Vital Speeches, No.24, Vol. XIX, P.761 (Oct. 1, 1953). “

 

(iv) American Law by Lawrence M. Friedman:

 

“The situation in the United States could hardly be more different. American Judges are lawyers, plain and simple. Usually, they are lawyers who are, or have been politicians. One survey of Judges in the United States Courts of Appeal, for example, found that about four out of five had been ‘political activists’ at some point in their careers. The situation is the same on State Courts perhaps more so. Judges are usually faithful party members; as seat, on the Bench is their reward for political service. They are also supported to be good lawyers and to have the stuff of good Judges; whether this is actually taken into account depends on where they are, who does the choosing, and so on.”

 

(v) The Supreme Court and American Democracy by David G. Barnum:

 

“Social Origins of Supreme Court Justice.‑‑Between 1789 and 1991 (with the confirmation of Clarence Thomas),_ 106 individuals have served on the Supreme Court. Not surprisingly, a large proportion perhaps 85 to 90 per c a come from families that were economically secure and enjoyed high social status. Only a ‘handful’ of justices, according to one scholars were of essentially humble origin’. Among those justices, of course are some of the Court’s most prominent members, including William Douglas, Arthur Goldberg, and Thurgood Marshall, and Chief Justices Earl Warren Burger. The typical appointee, however, is someone from a high status background.

 

Other features of the background of Supreme Court Justices distinguish them, as a group, from the general population. About twothirds of the justices have come from politically active families, and about onethird have been related by blood or marriage to individuals who themselves had career in the judiciary. The ability of families to transmit particular values and advantages is clearly evident in the disproportionate number of justices who come from families with a tradition of political activity and/or judicial service.”

 

Political Activity and Partisanship:

 

“Substantial proportion of justices were deeply involved in Government and politics prior to the appointment to the Supreme Court. Some such as Justice Black and Chief Justice Waren, had held high elective office. Others, for example, Justice White and Chief Justice Rehnquist, had held high administrative positions in the Federal Government. Almost all Supreme Court appointees have been politically active in some sense or other. Good examples of Justice Powell (who was, active in school affairs in Virginia and was at one time President of the American Bar Association), Justice O’Connor (who was elected to and eventually became majority leader of the Arizona State Senate), Justice Fortas (who practised law in Washington, D.C., and participated myriad ways in Democratic politics at the Federal level. “

 

(vi) Constitutional Texts edited by Rodney Brazier:

 

“It has become progressively more difficult to combine membership of the Commons with a successful practice at the Bar. Lord Hailshain has regretted that he was unable to appoint a single High Court Judges from among M.Ps. There is something of a vicious circle in that the lack of a reasonable prospect of elevation to the Bench may discourage the ablest lawyers from seeking a political career. Political experience has been regarded by some as an asset for an appointee. Lord Simon has argued that: ‘although no one would wish to see a predominantly political Bench, a seasoning of Judges with experience of politics and administration is far from disadvantageous; constituency duties, for example, are calculated to develop a social awareness which ordinary forensic work is not apt to inculcate’. “

 

(vii) American Constitutional law, Sixth Edition by Martin Shapiro:

 

“Prior judicial experienced is not essential because of the peculiar nature of the Court’s work. The Supreme Court is concerned principally with resolving major questions of public law that is, questions arising out of broad, fundamental issues of public policy. Throughout history, almost every major political issue before the country has ultimately reached the Supreme Court in the guise of litigation. What is required for the resolution of these issues is political judgment of the highest order rather than technical judicial proficiency in private law. Hence, judicial experience, although perhaps helpful, is not essential for success on the Court; in fact, if it had been a prerequisite in the past, most of the greatest Supreme Court Justices, such as Marshall, Story, Taney, Miller, Hughes (first appointment), and Brandeis, would have never reached the highest Bench. It is interesting to note, however, that three recent appointees, Justices Goldberg, Fortas, and Marshall, although lacking extended prior judicial experience, had previously had long and very successful records as practising attorneys representing important clients before the Supreme Court. “

 

(viii)The Tempting of America ‘The Political Seduction of the Law by Robbert H. Bork, P.34:

 

“There is a story that two of the greatest figures in our law, Justice Holmes and Judges Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, ‘Do Justice, Sir, do justice.’ Holmes stopped the carriage and reproved Hand: ‘That is not my job. It is my job to apply the law.’ I meant something like that when I dissented from a decision that seemed to proceed from sympathy rather than law: We administer justice according to law. Justice in a larger sense, justice according to morality, is for Congress and the President to administer, if they see fit, through the creation of new law’. “

 

It may be pointed’ out that the above treatise also deals with the famous case of a slave by the name Dred Scott, which matter went up to the Supreme Court of United States, wherein Taney, C.J. strongly pleaded in favour of the slavery. It further deals with the decision rendered by Salmon P. Chase, who was a rival candidate for Presidential nomination for the Republican in 1860, who was then made the Secretary of the Treasury by President Lincoln and in that capacity he supported the paper currency but when he was appointed Chief Justice by Lincoln, he in the case of Hepburn v. Grisword took the view that the Constitution forbade making papers legally tender.

 

(ix)  Encyclopaedia of the American Constitution by Leonard W. Levy and two others:

 

“Only the President and his close advisers know the actual motivations for the choice of a particular Supreme Court appointee. But a perusal of the records of the thirtyfive Presidents who nominated Justices (four W.H. Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter had no opportunity to do so) points to several predominating criteria, most apparent of which have been; (1) objective merit; (2) personal friendship; (3) considerations ‘of ‘representative-ness’; (4) political ideological compatibility, what Theodore Roosevelt referred to as a  selectee’s  real politics; and (5) past judicial experience.

 

(x) Constitutional Law by Mark V. Tushnet:

 

“Mr. Justice Frankfurter has recently reminded us, a surprinsingly large proportion of the Justices, particularly of the great justices who have left their stamp upon the decisions of the Court, have had little or no prior judicial experience. Nor have the justices certainly not the great justices been timid men with a passion for anonymity. Indeed, it is not too much to say that if justices were appointed primarily for their ‘judicial’ qualities without regard to their basic attitudes on fundamental questions of public policy, the Court could not play the influential role in the American political system that it does in reality play. “

 

(xi) Comparative Constitutional Law by Dr. (Justice) Durga Das Basu:

 

“In the light of the foregoing decisions, it is evident that the spate of judicial activism in India should be resisted by pointing out that even the theory that the role of the Court is wider in the matter of interpreting a Constitution than an ordinary statute, would not justify a Court in rewriting the Constitution. Bhagwati, J. has rightly observed, in a recent case:

 

‘We have ... to rid our mind of any preconceived notions or ideas and interpret the Constitution as it is and not as we think it ought to be. We can always find some reason for bending the language of the Constitution to our will, if we want, but that would be rewriting the Constitution in the guise of interpretation. (Supta v. Union of India AIR 1982 SC 149).

 

(xii) Parliament‑‑Functions, Practice and Procedures by J.A.G. Griffith:

 

“The Lord Chancellor is always a member of the Government with a seat in the Cabinet, and has responsibility for a department with recently enlarged duties for the administration of justice. It has increasingly proved difficult for him to obey the standing order which enjoins that ‘it is the duty of the Lord Chancellor ordinarily to attend the Lords House.’ When in the House, unlike the Speaker in the Commons, he may take part in debate and vote. There is no convention inhibiting him from party political controversy, and he does not have a casting vote.

 

When the Lord Chancellor is not present, other Lords may sit as Speaker, by virtue of a Royal Commission; in their absence and that of any Deputy Chairman, the House may, on motion, appoint its own Speaker.”

 

Mr. Aitzaz Ahsan has also referred to the Halsbury’s Laws of England, Fourth Edition, Volumes 8 and 10 to indicate as to the Procedure Of appointment of the Lord Chancellor and the Judges in United Kingdom besides referring to “The Due Process of Law% Landmarks in the Law by Lord Denning and O. Hood Phillips Constitutional and Administrative Law, Seventh Edition. It is not necessary to refer to the contents of the above books as they do not directly deal with the matter in controversy except that the last book has relevance, the relevant portion of which has already been dealt with hereinabove while dealing with the legal status of the Constitutional conventions.

 

He has also submitted photostat copies of the relevant provisions relating to the appointment of judiciary of seventyone countries from the treatise Constitutions of Nations by Amos J. Peaslee, which indicates that in some countries Judges are appointed by election; in some countries Judges are appointed by the Head of the Government; in some countries the President nominates and the appointments are made with the consent and approval of Legislature and in some countries the appointments are made on the advice of the Judicial Commission/Judicial Service Commission by the Head of the Government.

 

(d) Mr. S.M. Zafar has referred to the following passages from the following books:‑‑

 

(i) The Search –for justice by Joshua Rozenberg

 

“‘Mere would be a public Outcry if it became known that High Court Judges were being selected or rejected on political grounds‑‑ It is no longer the case that M.Ps. are regularly appointed to the Bench as they were during the nineteenth century. And it is no longer case, as it was until the Second World War, that a retiring  AttorneyGeneral can expect appointment as Lord Chief Justice or some other high judicial office when a vacancy next arises. However, it is still possible for a defendant to find himself appearing in Court before someone with declared political views; a number of MPs. sit from time to time as Recorders of the Crown Court indeed, there is always a chance that the parttime Judges called upon to interpret an unintelligible provision in the latest Criminal Justice Act was the M.P. who helped fashion it.”

 

(ii) A MATTER OF JUSTICE—THE LEGAL SYSTEM IN FERMENT BY MICHAEL ZANDER; THE APPOINTMENT PROCESS AND POLITICS

 

Since the Lord Chancellor is a political appointment and a member of the executive by virtue of his membership of the Cabinet, how far does politics intrude into the business of appointing Judges? In former times the appointment of Judges was decidedly prone to party political influence. Professor Baroin Laski, for instance, produced statistics to show that out of 339 Judges appointed between 1822 and 1906, 80 were Members of Parliament at the time of nomination and another  had been candidates; and that out of 83 Judges appointed who left Parliament for the Bench, 63 were appointed by their party while in office. It has been calculated that in 1956, 23 per cent. of the High Court, Court of Appeal or House of Lords Judges had been either M.Ps. or candidates 11 per cent. Conservative, 10 per cent. Liberal, and 2 per cent. Labour. But for the past two or more decades it has been broadly accepted that the Lord Chancellor does not allow party political considerations to influence his choice of Judges. During that period it has become very rare for anyone to be appointed to the Bench direct from Parliament, and it is equally rare for the issue of party politics to be brought, up in criticism of the Lord Chancellor’s appointments. “

 

(iii) Judges by David Pannick.

 

“Nothing can be more fantastical than the distribution of prizes in the lottery of legal promotion. Yet, as Lord Hailshain recognized, the selection and appointment of the judiciary is one of the most important responsibilities of a Lord Chancellor. No one can calculate the aggregate amount of evil inflicted on the community by a bad decision--------.”

 

In the U.S.A. the President has the power to appoint Supreme Court Justices with the consent of the Senate. A Presidential nominee has to undergo a Senate examination of his record and jurisprudential beliefs. This serves a valuable function in helping to articulate the criteria of a good Judge, in publicizing the beliefs of the nominee, in rejecting inadequately qualified candidates, and in focusing public attention on the process of appointment. The Senate has declined to confirm twenty­ seven of the nearly 140 Supreme Court nominees placed before it since 1789. Other Federal U.S. Judges are similarly appointed by the President, subject to confirmation by a vote of the Senate. The tasks of the President and the Senate are facilitated by the practice of the American Bar Association of assessing whether the nominee is qualified to be a Judge.”

 

(iv)   Judges and the Judicial Power Essays in Honour of Justice V.R. Krishna lyer edited by Rajeev Dhavan, R. Sudarshan and Salman Khurshid:

 

“In the end there is this problem before us. As the great historian Lord Acton said: All power tends to corrupt. Total power corrupts absolutely. Who is to control the exercise of power? Only the Judges. Some one must be trusted. Let it be the Judges.”

 

(v) The Politics of the U.S. Supreme Court by Richard Hodder Williams:

 

“Like Roger Taney’s judgment in Dred Scott then, he assumed that the Constitution spoke with the same words and the same meaning to all generations. Even on his own terms, this view presents problems, since the historical context does not always ensure a clear and perfect understanding of the precise implications intended by the Founding Fathers in the general phrases of the Constitution. Besides, it is, as John Marshall said, a Constitution to be interpreted, a blueprint requiring detailed infilling in the interstices and grey areas left by its generalities. The notion of what constitutes ‘equal protection’, for example, does change over time both in meaning and application. Indeed, one of the strongest defences of the Supreme Court has been that, despite momentary and sometimes not so momentary abarrations, it has adapted and reformulated the Constitution to meet the exigencies of the time. This has been crucial; for only by a gradual process of reformulation and redefinition could the Constitution retain its reverence, its legitimacy and its effectiveness.”

 

(vi) The Independence of the Judiciary by Robert Stevens:

 

“While Judges and indeed the Judicial Office may be admirably suited to factual investigations, such as accidents, when Judges are assigned tasks as commission or committee chairs, which require them to articulate policies and to choose between these policies, the separation of powers is inevitably blurred. However, one defines it, judicial independence is threatened. This becomes especially important when the Cabinet rejects reports that it has commissioned from Judges. This has happened at least twice within relatively recent memory. “

 

(vii) Constitutional Interpretation by Philip Bobbitt:

 

“On July 7, 1987 the Judiciary Committee of the United States Senate received the President’s nomination of Judge Robbert Bork to be an Associate Justice of the Supreme Court. Hearings on the nomination began on September 15, and continued until the end of the month, during which the nominee himself testified for thirty hours.”

 

(viii) Constitutional Dialogues: Interpretation as Political Process by Louis Fisher:

 

Justice Stone once lectured his brethren: ‘the only check upon our own exercise of power is our own sense of selfrestraint.”

 

He has also referred to the Mejelle by C.R. Tyser and Shariah The Islamic Law by Abdur Rahman, I. Doi, which I have already referred to and quoted their relevant portions hereinabove.

 

(e) Mr. Muhammad Akrain Sheikh has referred to the following publications besides the two treatises which I have already referred to hereinabove but he has not read out any portions of the same:

 

(i) Constitutional Practice by Rodney Brazier;

 

(ii) The Constitution in Flux by Philip Nortton;

 

(iii) Constitutional Reform by Rodney Brazier;

 

(iv)  de Smith and Brazier’s Constitutional and Administrative Law, Sixth Edition by Rodney Brazier;

 

(v)   The Constitution, The Courts, And Human Rights by Michael, J. Perry;

 

(vi)  Constitutional Text edited by Redney Brazier; and

 

(vii) V.,N. Shukla’s Constitution of India, Ninth Edition.

 

I have gone through the same and find that the points dealt with in the above treatises are covered by the aforesaid foreign publications cited by Messrs Qazi Muhammad Jamil, Yahya Bakhtiar, Aitzaz Ahsan and S.M. Zafar.

 

(b) Mr. Riazul Hassan Gilani has referred to the following publications on the import of the word “consultation” and in support of his contention that the office of the Chief Justice impliedly carries the power to appoint Judges in the superior judiciary:‑‑

 

(i) Holy Qur’an with English translation. He has relied upon the Verse 159 of Surah AlImran, the English translation of which reads as under

 

159. It was by the mercy of Allah that thou wast lenient with them (0 Muhammad), for it thou hadst been stem and fierce of heart they would have dispersed from round about thee. So pardon them and ask forgiveness for them and consult with them upon the conduct of affairs. And when thou art resolved, then put thy trust in Allah. Lo! Allah loveth those who put their trust (in Him).”

 

(ii) Tafseer IbneKaseer Aljuz Awal

 

He relied upon the following Verse from Surah AlImran of Holy Qur’an:‑‑

 

He relied upon the following translation:‑‑

 

(v) The Holy Qur’an by Maulana Abdul Maiid Dgaabadi:

 

He relied upon the following English translation of Verse 159 of Surah AlImran and para. 300:‑‑

 

“ 159. It was then of the mercy of Allah that thou hast been gentle with them; and wert though rough, hardhearted, they had surely dispersed from around thee. So pardon them thou, and ask thou forgiveness for them and take thou counsel with them in the affair, and when thou hast resolved, put thy trust in Allah. Verily Allah loveth the trustful. “

 

300. i.e. in the important affairs of the community, such as peace’ and war. Note the essentially democratic character of the commonwealth of Islam. Even the divinely guided Prophet is enjoined to establish, by his example, the practice of deliberation in the community. “

 

He relied upon the following:‑‑

 

Translation by Mr. Gilani:

 

Translation by Mr. Gilani:

 

He relied upon the following:

 

Its translation:

 

He relied upon the following:

 

Translation.

 

Ijma” is synonym of lzma i.e. Azam and Ittifaq.

 

He relied upon the following:

 

Translation.

 

He relied upon the following:

 

Translation:

 

He relied upon the following:

 

(xviii) “Law in the Middle East” edited by Maiid Khadduri and Herbert, J. Liebesny.

 

 He relied upon the following extract:‑‑

 

“Thus, the appointment of the position of Qadi alQudat (Chief Qadi) entails, without its being expressly mentioned, the right to appoint Na’ibs; for the Qadi alQudat is the head of the judicial administration with the right to appoint and dismiss Judges.”

 

42. The question, as to whether the appointment of Judges is an executive act or not, will depend on the language employed in the relevant provisions of the Constitution in issue. I have ‘ already referred to hereinabove the facturn that Mr. Aitzaz Ahsan has furnished photostat copies of the relevant Articles of the Constitution of 71 Countries, which inter alia indicate different modes of appointment of Judges, namely:‑‑

 

(i)    by election through the mode provided in the relevant Articles of the Constitution;

 

(ii)   by nomination by the head of the State but appointment with the consent of the legislative body;

 

(iii)   by the head of the Government on the advice of Judicial Commission/Judicial Services Commission,

 

(iv)  by the head of the Government; and

 

(v)   by the head of the State in consultation with the heads of the Judiciary.

 

The extracts of the foreign publications quoted hereinabove relate to the appointments of inter alia Supreme Court Judges in the United States and the Judges of various Courts in United Kingdom. The publications relating to the appointment of Supreme Court Judges in. U.S.A. indicate that various Presidents of U.S.A. attempted to pack the United State Supreme Court with the Judges having some political affiliation or belonging to certain class or certain areas of the United States. According to David G. Barnum, in his book under the title “The Supreme Court and American Democracy”, referred to hereinabove in sub­para. (v) of para. 41(c), during the period between 1789 to 1991, 106 individuals had served on the Supreme Court, out of them perhaps 85 to 90 per cent. had come from families that were economically secure and enjoyed high social status. He further observed that about twothird of the justices had come from politically active families and out of them onethird had been related by blood or marriage to individuals who themselves had career in the judiciary. Whereas, according to another author Martin Shapiro, in his book under the caption American Constitutional Law, referred to hereinabove in subpara. (vii) ‘of para. 41(c). prior judicial experience is not essential because of the peculiar nature of the Courts work as, according to him, the Supreme Court is concerned principally with resolving major questions of public law the questions arising out of broad fundamental issues of public policy. Louis Fisher in his treatise under the caption “Constitutional Dialogues”‑‑Interpretation as Political Process, stated that Justice Frankfurter believed that it could be said without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero”. It may also be observed that Mark B. Tushnet, in his treatise on Constitutional Law referred to the facturn that Justice Frankfurter reminded that large proportions of justice particularly of great justices, who had left their stamp upon the decisions of the Court had little or no prior judicial experience.

 

The then American President, Roosevelt, on his radio talk on 931937, referred to by Mr. Yahya Bakhtiar, was highly critical of the working of the United States Supreme Court and observed that we have therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself”. He worked out a plan to back up the Supreme Court with the new Judges in order to outnumber the sitting Judges who were not supporting his views/actions, and for that purpose, he sent a bill but the Senate Committee in its report frustrated the above attempt. In this regard, it may be pertinent to quote the relevant portion of the above report from the book under the title “Constitutional Dialogues”‑‑Interpretation as Political Process by Louis Fisher, relied upon by Mr. S.M. Zafar, which reads as under:‑‑

 

“The report’s harsh language was designed to repudiate the bill so emphatically that no President would ever float the idea again:

 

This is the first time ‘in the history of our country that a proposal to alter the decision of the Court by enlarging its personnel, has been so boldly made. Let us meet it. Let us now set a salautary precedent which will never be violated. Let us, of the Seventyfifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defence of the liberties of the people, then a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact. We are not the Judges of the Judges. We are not above the Constitution,”

 

The above committee’s report was supported by the then Chief Justice of U.S. Supreme Court, Mr. Justice Hughes, who wrote a letter stating that the Court was fully abreast of its work and there was no congestion of cases upon our calendar.

 

After the successful revolution in the United States and the formation of the Federation, the situation was not stable and, therefore, the concepts of rule of law or an independent judiciary were different. The anxiety oil the part of the Presidents of the United States who were in office immediately after the revolution was to consolidate the Federation. To achieve the above object, the appointments in the U.S. Supreme Court used to be made with the consent of the Senate of the person known having same views as the President and his party had about the broad political and public policy matters. With the passage of time and after the emergence of United States as a great country, thinking and their perceptions about the rule of law, independence of judiciary has undergone material change. The U.S. Supreme Court also became more active in practising activism. There also seems to be a change in the trend in the appointments of Judges in the Supreme Court in United States and the people want an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defence of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing authority or factional passion, approves any measure which the Congress may enact. The Bar Association also played part in projecting the candidates for judgeship for U.S. Supreme Court. There is a long drawn process of scrutiny of a candidate for judgeship of the Supreme Court by the Judicial Committee of the Senate in which all sorts of questions are put to him namely, about his character, conduct, past and present life besides testing his legal knowledge and ability. The above examination by the Senate Committee is telecast nationally so that public should know about the person who is going to sit in the Supreme Court for his remaining life and they may come forward with the adverse information about him.

 

Mr. Robert Bork, who was nominated for an associate justice of the Supreme Court by the President, remained under crossexamination during the scrutiny process conducted by the Judicial Committee of Senate for the period commencing from 1591957 and continued until the end of the month for 30 hours and eventually the Senate rejected him.

 

It is true that even in England up to about two decades back, the Judges were appointed from the members of the Parliament belonging to political parties particularly to the party in power. Michael Zander in his book under the title “A Matter of Justice The Legal System in Ferment”, relied upon by Mr. S.M. Zafar and referred to hereinabove, has referred to the statistics collected by Professor Herold Laski, which indicates that out of 339 Judges appointed between 1822 and 1906, 80 were members of the Parliament at the time of nomination and another I I had been candidates; and that out 83 Judges appointed who left for the Bench, 63 were appointed by the party while in office. The same also indicates that in 1956, 23 per cent. of the High Court, Court of Appeal or House of Lords, Judges had been either M.Ps. or candidates; out of them, I I per cent. Conservative, 10 per cent. Liberal and 2 per cent. Labour. The author also points out that for the past two or more decades, it has been broadly accepted that the Lord Chancellor does not allow party political considerations to influence his choice of Judges.

 

43. Mr. S.M. Zafar has also produced a booklet under the caption “Judicial Appointments” ‑‑‑ The Lord Chancellor’s Policies and Procedures, issued in November, 1990, by the present Lord Chancellor Lord Mackay of Clashfern to make it public the procedure prevalent in U.K. for the appointment of Judges in the various Courts. The above booklet indicates that a thorough scrutiny of a candidate for Judgeship is carried out by the staff, which is known as Judicial Appointments Group, and by the Lord Chancellor himself and the appointment is made on merits not for political reasons. It will not be out of context to reproduce the following extract from the above booklet:‑‑

 

“I share with all my predecessors the view that the appointment of Judges and judicial officers is among my most important responsibilities. The volume of work in the judicial system is constantly increasing and, despite the measures the Government, the Judges and the profession are taking to improve efficiency, the number of Judges and judicial officers continually rises. This makes it essential to ensure that those appointed are of the highest professional calibre, integrity and judicial quality. I regard this as a vitally important personal responsibility. Therefore, I myself take all the decisions on individual appointments and about our policy and procedures. I am assisted in this task by a small team of officials and also by a much wider circle of Judges and of senior members of both branches of the legal profession. As Lord Hailsharn said when introducing the first edition of this booklet, our arrangements depend on a working partnership between my Department, the judiciary and the profession. “

 

. Reference may also be made to the procedure adopted by the Lord Chancellor’s department:‑‑

 

“In order to follow the principle of wide consultation observed by successive Lord Chancellors, the small team of officials in the Lord Chancellor’s Department who make up the Judicial Appointments Group have, with the approval of the Lord Chancellor, developed the following system.

 

Every year there is a review of the potential candidates for appointment in each Circuit. In the case of the South Eastern Circuit, which is very large, this process is more or less continuous. In the other Circuits, the review takes the form of a visit to the Circuit by a senior member of the appointments team extending over a period of about a fortnight, in which Judges at all the principal Courts are consulted. Each is asked to express a view of the suitability of Recorders for fulltime appointment, of Assistant Recorders for promotion to Recorder, and of members of the profession for appointment as Assistant Recorders. Following these visits, there are consultations with the Presiding Judges and Leaders of the Circuits. Senior members of either Bench of the profession may also be consulted in certain cases.

 

With regard to those who apply to sit as Deputy District Judges, Acting Stipendiary Magistrates or Tribunal Chairman, similar consultations are undertaken with members of the judiciary before whom the candidate often appears. References are also taken up.

 

The views thus obtained are then collated and recorded. When the Lord Chancellor is considering an appointment, therefore, he will have before him a collection of informed views about a candidate’s ability, standing in the profession, and suitability for judicial office. Before making an appointment, he will also consult the senior Judges. In the Circuits, the Presiding Judges play a key role and are regularly consulted on appointments. When appointments are made to the ranks of Queen’s Counsel or to the High Court, the process involves consultation between the Lord Chancellor and the four Heads of Division, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the ViceChancellor, together with the Senior Presiding Judges.”

 

It is evident from the abovequoted extracts from the aforesaid booklet that in U.K. there is a very effective system in selecting the candidates for judgeship be selection is based after collecting information in respect of the candidate or the members of the profession, members of judiciary which inter alia include Heads of four Divisions i.e. the Lord Chief Justice, the Master of the rolls, the President of the Family Division, together with the Senior Presiding judges.

 

44. In my view, the system of appointment of Judges obtaining in U.S.A. and U.K. has no direct bearing on the controversy in issue. Out of deference to the learned counsel, I have quoted certain extracts from the books cited by them The systems of appointment of Judges in the above two countries are different as, compared to our country. The relevant Articles in our Constitution relating to appointments in Judiciary with minor variations have been lifted from the Indian constitution, 1950, and, therefore, the factum as to how they have been interpreted and acted upon in India is relevant. I have also referred to and quoted the relevant extracts from the relevant judgments of the Indian Supreme Court covering the controversy in issue.

 

I have already pointed out hereinabove that while construing the relevant provisions of our Constitution, we will have to invoke aid of the Islamic jurisprudence for the reasons already discussed besides pressing into service the established conventions, if any.

 

Mr. Riazul Hassan Gilani, learned A.S.C. appearing for Lahore High Court bar Association, has referred to hereinabove a number of Verses from Holy Qur’an and books on Islamic Jurisprudence to indicate the import of the word “consultation”. The abovequoted Verses and the extracts from the aforesaid books indicate that though Holy Prophet Muhammad (p.b.u.h) was divinely guided because of divine revelations but he used to consult his companions and other Muslims in important affairs as commanded in Verse No.159 of Surah AlImran. It is also evident that the four Caliphs also used to consult people in all matters. Holy Prophet as well as Caliphs used to accept the advice tendered by colleagues and people who had the status of Ijma having binding effect. However, in my humble view, the consultation referred to in the abovequoted Verses from the Holy Qur’an and the books is different inasmuch as the same relates to the collective consultation fromthe people, whereas the present consultation is of an individual character. In this view of the matter, we cannot press into service the principle of Ijma.

 

Mr. Riazul Hassan Gilani has also cited a number of treatises, of which relevant portions have been quoted hereinabove, in furtherance of his above submission that the office of  (Chief Qadi) impliedly carries the power to appoint Naib Qadis. In this regard, it may be pertinent to observe that during Banu Ummayyad period, the judicial system had suffered a set back inasmuch as the Qadis were not appointed on merits but they were appointed on extraneous considerations with the object to obtain decision according to the desire of the ruler. In this behalf, reference may be made to the. Instance quoted in the above book under the caption” Imam abu Hanifa Az Mufti Aziz-ur-Rehman” namely, that during the period of Khalifa Mansoor’s Mehdi, a dispute arose between an officer of the Army and a businessman about the ownership of the land. The matter was taken up before Qadi Ubaid Ullah Bin Hassan. Mehdi sent a message to the above Qadi that the case should be decided in favour of the Army Officer. Contrary to the above instruction, Qadi Ubaid Ullah Bin Hassan decided the case against the Army Officer. Thereupon, immediately he was dismissed by Mehdi.

 

However, there seems to be divergence of views inasmuch as  a wellknown Muslim Jurist, was of the view that a (Chief Qadi) did not have the power to appoint other Qadis unless the king expressly conferred the powers to do so. It will not be out of context to mention that during the days of Holy Prophet Muhammad (p.b.u.h.) and the four Caliphs, there was no office of (Chief Qadi). The Qadis were appointed by Holy Prophet himself and by the Caliphs. The first time the above office was introduced by Khalifa Haroon Rashid, who appointed Imam Abu Yousaf as the first (Chief Qadi). He was not only  (Chief Qadi) but was also Minister of Law. Khalifa Haroon Rashid had great respect and liking for Imam Abu Yousaf and, therefore, he used to consult him in various State matters. This office was maintained by the Muslim Rulers.

 

In my view, there is not sufficient material before me to decide authoritatively the question, as to whether the preponderance of Islamic Jurists view is in favour of the facturn that the office of Chief Qadi carries the implied power to appoint other Qadis and, therefore, I. am not inclined to decide the above question. Additionally, the office of the Chief Justice of Pakistan has been created by Article 176 of the Constitution. The above Article and the subsequent Articles do not confer any power on the Chief Justice to appoint other Judges. .No Chief Justice has ever claimed any implied power to appoint Judges in the superior judiciary. The role assigned by the Constitution to the Chief Justice is that inter alia he is to be consulted by the President before any appointment of a Judge in the Supreme Court or in a High Court is made.

 

45. Mr. S. Sharifuddin Prizada has pointed out that after the judgment in the case of S.P. Gupta (supra) was handed down by the Supreme Court of India which included the opinion of Mr. Justice Bhagwati to the effect that if all the consultees mentioned in the, relevant Articles of Indian Constitution were to recommend a particular candidate for judgeship unanimously, the Executive could decline to accept the same, there was lot of criticism inasmuch as a number of articles commenting adversely on the above judgment appeared in the Indian Press which inter alia included articles by Mr. Arun Shourie. According to him, Mr. Justice Bhagwati issued an explanation that certain portions of his opinion had been left out from the typed script. He also issued a corrigendum containing the above left out matter, which reads as follows:‑‑

 

“It may prima facie be vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds. The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India. “

 

In this regard, it may also be pertinent to point out again that though it was held that the Chief Justice of India’s view did not have primacy but, at the same time, it was held that the consultation contemplated by the Constitution must be full and effective and by convention, the views of the Chief Justice of the High Court concerned and the Chief Justice of India should always prevail unless there are exceptional circumstances which may impel the President to disagree with the advice given by the above Constitutional authorities.

 

I may now revert back to the recent judgment of the Indian Supreme Court in the case of Supreme Court AdvocatesonRecord Association (supra). I have already quoted hereinabove in para.35 the relevant portion of J.S. Verma, J.’s opinion, who wrote for himself and for his four. learned brethren. A close scrutiny of the same indicates that the above learned Judges’s opinion that the Chief Justice of India’s view will have primacy is contingent on the conditions mentioned by him and in certain events the view of the Chief Justice of India can be ignored. In this regard, it may be pertinent to point out that in subpara. (1) of para.501 of the opinion, he opined that the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. He further opined that the Chief Justice of India is also expected to ascertain the views of the senior most Judges of the Supreme Court belonging originally to a particular High Court, from which High Court a candidate for Supreme Court judgeship is under consideration. Incidentally, I may point out that though under Article 124 of the Indian Constitution the President may consult some of the Judges of the Supreme Court and the High Court while considering the question of appointment of a Supreme Court Judge, but there is no requirement for the Chief Justice of India to consult any of his colleagues. The above observation of the learned Judges is founded on a convention obtaining in the Indian Supreme Court and not in terms of the Constitution.

 

Whereas in subpara. (6) of para. 501 of his opinion, he observed that there may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at time, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-­appointment of the candidate recommended by the Chief Justice of India”. Reference may also be made to subpara. (8) of aforesaid para. 501, where Verma, J. opined that if the opinions of senior Judges consulted by the Chief Justice are contrary to the views of the Chief Justice as to the suitability of the recommendee for the reasons recorded by them, the President may accept their views and then the nonappointment of the candidate recommended by the Chief Justice of India would be permissible. He further opined that similarly, when the recommendation is for appointment to a High Court and the opinion of the Chief Justice of the High Court conflicts with that of Chief Justice of India, the non-­appointment for valid reasons to be recorded and communicated to the Chief Justice of India would be permissible. It is, therefore, evident that factually it has not been held that the Chief Justice’s views would have primacy in all matters of recommendations made by him for the appointment of Judges in the superior Courts.

 

46. Mr. S. Sharifuddin Pirzada has also invited our attention to the case of Issuarchand Aggarwal v. State of Punjab AIR 1974 SC 1292 to point out that even earlier in 1974 the Indian Supreme Court’s view was that the Chief Justice’s views should be accepted. The above case related to the interpretation of Article 235 read with Article 311 of the Indian Constitution pertaining to subordinate judiciary. The Bench comprised, A.N. Ray, C.J. D.G. Palekar, K.K. Mathew, Y.V. Chandrachud, A. Alagirisami, P.N. Bhagwati and V.R. Krishan Iyer, JJ. He has invited our attention to para. 148 from the opinion of V.R. Krishan Iyer, J., which reads as under:‑‑

 

“148. In the light of the scheme of the Constitution we have already referred to, as to the personal satisfaction of the President is correct. We are of the view that the President means, for all practical purposes, the Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or decision is Constitutionally secured when his Ministers arrive at such opinion, satisfaction or decision. The independence of the Judiciary which is cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant Article making consultation with the Chief Justice of India obligatory. In all conceivable cases consultation with that highest dignitary of Indian Justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”

 

He has also referred to the case of M.M. Gupta and others v. State of J&K and others AIR 1982 SC 1579, which case was decided on 15101982 i.e. several months after the decision in the S.P. Gupta’s case (supra). To the above judgment, Bhagwati, J. was also a party, in which Article 235 of the Indian Constitution relating to the appointment of District and Sessions Judges, which provided consultation by the Governor with the High Court concerned, was dilated upon. He has particularly relied upon the following observations contained in para. 33, which read as follows

 

“Unfortunately, for some time past there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level. The unfortunate interference by the executive results in prolonged and unnecessary delay in making the appointments and judicial vacancies continue for months and in cases for years with the result that the cause of justice suffers. It is common knowledge that members of the Bar who are considered suitable to be on the Bench are reluctant to join the Bench and the Office of a Judge has for various reasons ceased to attract the talented members of the Bar. The further unfortunate fact is that even in cases when competent members of the Bar may be persuaded to accept the office of a High Court Judge or join the higher judicial service, they ultimately withdraw their consent in view of the delay in making the appointments and because of various restrictions sought to be imposed.  ...  .. We are of the opinion that normally, as a matter of rule, the recommendations made by High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If in any particular case, the State Government for good and weighty reasons find it difficult to accept the recommendations of the High Court, the State Government should communicate its views to the High Court and the State Government must have complete and effective consultation with the High Court in the matter. There can be no doubt that if the High Court is convinced that there are good reasons for the objections on the part of the State Government, the High Court will undoubtedly ‘reconsider the matter and the recommendations made by the High Court. Efficient and proper judicial administration being the main object of these appointments, there should be no difficulty in arriving at a consensus as both the High Court and the State Government must necessarily approach the question in a detached manner for achieving the true objective of getting proper District Judges for due administration of justice.”

 

He also referred to the book under the title Recollections and Reflections by late Mr. Justice (Retd.) Muhammad Shahabuddin, former Chief Justice of Pakistan, in which late Justice Shahabuddin referred to the method of selection of Judges as under:‑‑---

 

“Selection was made on the recommendation of the Chief Justice of the highest Court‑‑Federal Court before 1956 Constitution and Supreme Court since that Constitution came into force which was based on what the Chief Justice of the High Court had recommended. Whenever, there was a difference of opinion between the two Chief Justices or the Governor and the said Chief Justices, the President decided the issue after consultation with the authorities who had differed. This method of selection was continued for some time even after the revolution of 1958. But before the present (1969) Martial Law regime started, persons considered eligible for judgeship were being interviewed by the former President and the Governor of the Province concerned. This innovation created in the minds of the intelligentsia the apprehension that it would adversely affect the independence of the judiciary. It was feared that persons who were in the run for this High Office would try to bring political influence to bear on the authorities. I hope that the old system would be restored. If, however, interviews are considered necessary, the Supreme Judicial Council should be asked to interview the candidates. Interviews by a judicial body would not impair the public confidence. It is of utmost importance that care is taken to avoid measures which are liable to be misinterpreted as steps adopted to secure convenient Judges.”

 

He further referred to the relevant portion from the book under the caption Highways and Byeways of Life by Muhammad Munir, retired Chief Justice of Pakistan, in which the author had mentioned an instance about the appointment of a Judge in the erstwhile East Pakistan High Court by late Mr. Suhrawardy, the then Prime Minister of Pakistan, contrary to his recommendation as under:‑‑

 

“I have said that MT. Suhrawardy was assertive and conscious of the powers he enjoyed. I am tempted to mention here an incident of the appointment of a Judge of the East Pakistan High Court. A new Judges had to be appointed to that Court. I had recommended a Muslim Lawyer (he was, though I am not sure, Mr. Saim who became the President of Bangladesh after Mujib’s assassination). Mr. Suhrawardy however, appointed a Hindu, Nandi by name, without consulting me. Nandi was the ablest member of the Bar; but his loyalty to, and citizenship of Pakistan were doubtful. His family lived in Calcutta and he sent all the money he earned in East Pakistan to his home in Calcutta. He came to Dacca only when he had to argue a case there and accepted briefs for Dacca in his Calcutta office. At a dinner at Dacca when I was sitting next to Suhrawardy I told him that I was waiting for an appeal from Nandi’s judgment. Why so, he asked me. I told him that his appointment having been made without consulting me, it Was void and I would hold, whenever an occasion arose, that his judgments for that reason were void. Suhrawardy folded his hands before me and said Guruji don’t do this please, I can send the papers to you for a retrospective approval.”

 

Mr. Sharifuddin Prizada has also referred extensively to Sapru Committee’s recommendations as to the framing of Indian Constitution inter alia in support of his submission that the Chief Justice’s views should have primacy. Whereas Qazi Muhammad Jamil, learned AttorneyGeneral, has submitted that reference to the above report is not pertinent as the Indian Constituent Assembly did not accept the same.

 

It will not be out of context to mention as to how Sapru Committee was formed. It seems that the Standing Committee of the NonParty Conference which met on the 18th and 19th November, 1944, at New Delhi adopted a resolution deciding to appoint a committee with terms of reference which were contained therein. The resolution reads as under:‑‑

 

“The Standing Committee of the NonParty Conference, having considered the present situation in view of the breakdown of the GandhiJinnah talks on the communal issue, hereby resolves to appoint a committee which will examine the whole communal and minorities question from a Constitutional and political point of view, put itself in touch with different parties and their leaders including the minorities interested in the question and present a solution within two months to the Standing Committee of the NonParty Conference. The Standing Committee will take all reasonable steps to get that solution accepted by all parties concerned. The Standing Committee authorities Sir Tej Bahadur Sapru to appoint members of the committee and announce their names in due course.”

 

Sir Tej Bahadur Sapru, pursuant to the above resolution, constituted a’ committee comprising 30 persons of outstanding repute from all walks of life and from Muslim, Hindu and Christian religions etc. The above committee headed by Sapru formulated inter alia recommendations as to the contents of the provisions of the proposed Constitution relating to judiciary. In para. 261 of the report, the committee highlighted the object which was kept in mind while proposing the draft of the relevant provisions in the Constitution. The above para. 261 reads as follows:‑‑

 

“261. Our main object in making these recommendations is to secure the absolute independence of ‘die High Court and to put them above party politics or influences. Without some such safeguards, it is not impossible that a Provincial Government may under political pressure affect prejudicially the strength of the High Court within its jurisdiction or the salary of its Judges. If it is urged that the High Court and the Government concerned will be more or less interested parties in the matter, the intervention of the Supreme Court and of the Head of the State would rule out all possibility of the exercise of political or party influences. The imposition, of these conditions, may, on a superficial view, seem to be inconsistent with the theoretical autonomy of the Provinces, but, in our opinion, the independence of the High Court and of the judiciary generally is of supreme importance for the satisfactory working of the Constitution and nothing can be more detrimental to the wellbeing of a Province or calculated to undermine public confidence than the possibility of executive interference with the strength and independence of the highest tribunal of the Province.”

 

Be that as it may, in my view, it is not necessary to enter into the above controversy. However, it will suffice to observe that the framers of Indian Constitution substantially lifted from Sapru Committee’s Report the provisions relating to judiciary.

 

47. Mr. Muhammad Akram Sheikh inter alia referred to the speech of Mohtarma Benazir Bhutto made in the National Assembly on 1451991 as the then Leader of the Opposition on a bill which inter alia included her views about the appointments in the judiciary. The relevant portion of the same reads as follows:‑‑

 

“Mr. Speaker  why is it when a Bill chooses to transfer power from the Parliament to the judicial branch of Government, it is not the judicial branch which is strengthened, but it is executive branch which is strength; the reason Mr. Speaker is that the executive appoints the Judges, the executive, and in our country by practice, not always by law .the President appoints the Justice and thereby we see that the effective control of the judiciary goes into the hands of the executive and when the Legislative Parliamentary Power is broken and the judiciary is male captive of the Chief Executive, then, one can say they are entering a new form of tyranny or a new form of Government: That is one person shall be above and beyond the decision of the representatives of the people.”

 

He has also referred to the declarations made on 1981995 by the Chief Justices of South East Asia which included Honourable Chief Justice of Pakistan, particularly to paras. and 1, 2 relating to appointment of Judges. The above paras. read as under:‑‑

 

“11. to enable the Judiciary to achieve its objectives and perform its functions, it is essential that Judges be chosen on the basis of proven competence, integrity and independence.

 

12. The mode of appointment of Judges must be such as will ensure the appointment of persons who are, best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.”

 

48. Mr. Qazi Muhammad Jamil, learn AttorneyGeneral, in support of his submission that the Chief Justice’s views cannot be given primacy and that the views of all the consultees mentioned in the relevant Articles of the Constitution are equal and that it is for the President/Executive to decide which of the views should be accepted or not, has pointed out that Pakistan has a Federal structure which has the following peculiar features:‑‑

 

(i)    Written Constitution.

 

(ii)   Rigid Constitution in which making of amendments is difficult;

 

(iii)   Distribution of power between the Federation and the Federating units and the three organs of the State; and

 

(iv)  An independent Judiciary to ensure that the Constitutional provisions or any other law is not violated.

 

According to him, the Federation as well as the Federating units ,derived power from the same source, namely, the Constitution. He vehemently urged that if we were to hold that the Chief Justice of Pakistan’s views would have primacy over the views of a Chief Justice of a High Court or Governor of the Province concerned, that would militate against the concept of Federation as according to him, a Chief Justice of the High Court or a Governor of the Province concerned will have better knowledge and more information about a candidate for judgeship than the Chief Justice of Pakistan and, therefore, their views cannot be ignored.

 

49. Mr. Yahya Bakhtiar has referred to Articles 74, 5(4) 46(l) and 147 of the Constitution to show that the word “consent” has been employed by the framers of the Constitution.

 

He has also referred to Articles 100(3), 48(l) and 105(l) of the Constitution to demonstrate that the word “advice” has been used by the framers.

 

He has further referred to Articles 160(l), 198(4), 200(l), 203C(4), 218(2)(b) to show that in the above provisions of the Constitution, the words after consultation’ have been used.

 

He has lastly referred to Articles 146(3), 152 and 159(4) to indicate that in the above Articles, the Chief Justice of Pakistan has been given the power to appoint arbitrators in the cases referred to therein.

 

On the basis of the above provisions of the Constitution, he vehemently contended and in this contention he was joined by Mr. Qazi Muhammad Jamil, learned AttorneyGeneral and Mr. Aitzaz Ahsan, that the framers of the Constitution were mindful of various terminologies which is apparent from the above provisions of the Constitution. According to him, the words “after consultation” cannot be construed as the words “after consent” in the relevant Articles relating to appointment of Judges in the superior judiciary as the word “consent’ as pointed out hereinabove, has been used in above Articles in contradistinction to the words “after consultation”. Mr. Qazi Muhammad Jamil, learned AttorneyGeneral, has again pointed out that the attempt on the part of santé members of the Indian Parliament to get the word “concurrence” in place of the word “consultation” in the relevant Articles of the Indian Constitution relating to appointment of Judges in the superior Courts, was consciously rejected by the framers of Indian Constitution and, therefore, it is not legally permissible on any principle to read the words after consultation” as the words after consent”.

 

The learned counsel for the Federation vehemently contended that since the Executive is accountable to the people and to the Parliament, whereas the Chief Justice is not accountable to anyone except to his conscience, the primacy cannot be given to his views. This is also so that in order to keep him away from the public criticism.

 

50. I have cited hereinabove in para. 478 from the judgment in the case of Supreme Court AdvocateonRecord Association (supra), wherein more or less identical contention has been repelled by J.S. Verma, J. In my view, the above contention is not tenable as if a wrong person is appointed as a Judge of a superior Court, it affects adversely the quality of the Court’s work, with the result that litigant public criticize the Court. I may also mention that since the conduct of a Judge of a superior Court cannot be discussed in the Parliament in view of Article 68 of the Constitution, the Executive in fact is not accountable as to the working of a Judge.

 

I am inclined to hold that the act of appointment of a Chief Justice or a Judge in the superior Courts is an executive act. No doubt this power is vested in the Executive under the relevant Articles of the Constitution, but the question is, as to how this power is to be exercised. I have already dealt with the question as to the legal status of conventions. They can be pressed into service while construing a provision of the Constitution and for channelising and regulating the exercise of power under the Constitution; whereas under the Islamic Jurisprudence, a convention, which is termed as Urf has a binding force as’ highlighted by me hereinabove in paras. 26 and 27 on the basis of various M Islamic sources. Nobody has disputed that it has been a consistent practice which M has acquired the status of convention during prepartition days of India as well M as postpartition period that the recommendations of the Chief Justice of a High Court and the Chief Justice of the Supreme Court in India as well as in Pakistan have been consistently accepted and acted upon except in very rare cases. The practice of consultation of the Chief Justice of a High Court and the Indian Federal Court was obtaining even under the Indian High Courts Act as well as under the Government of India Act, 1935, though the appointment of Judges of superior Courts in India was a matter of pleasure vested in the Crown. The recommendations of the Chief Justices even in those days were accepted as a matter of course. In this regard, it may be pertinent to first reproduce para. 388 from the judgment of the Indian Supreme Court in the case of Supreme Court AdvocatesonRecord Association (supra) and then paras 382 and 384 of the same, referred to be Mr. Sharifuddin Pirzada, which read as under.

 

“388. The first test is what are the precedents? Under the Government of India Act, 1935, which remained operative till 1950, all appointments of Judges to the Federal Court and the High Courts were made with the concurrence of the Chief Justice of India. The apex Judiciary in its memorandum dated March, 1948 recorded in writing that the appointments of Judges were made under the British Raj with the concurrence of the Chief Justice of India on the basis of an established convention. We have the precedents for the period from 1950 to 1959 and from January 1, 1983 to April 10, 1993. Almost all the appointments during the said period were made with the concurrence of the Chief Justice of India. The preceding thus clearly indicate the existence of the convention and, as such, the first question, according to us, is complied with.

 

382. Finally, Mr. Gobind Ballagh Pant, Minister for Home Affairs (Appointment of Judges was dealt with by the Home Ministry) replying to the debate on the 14th Report of the Law Commission in the Rajya Sabha on November 24, 1959, stated as under: ‑‑

 

‘Sir, so far as appointments to the Supreme Court go, since 1950 when the Constitution was brought into force, nineteen Judges have been appointed and everyone of them was so appointed on the recommendation of the Chief Justice of the Supreme Court. I do not know if any other alternative can be devised for this purpose. The Chief Justice of the Supreme Court is, I think, rightly deemed and believed to be familiar with the merits of his own colleagues and also of the Judges and advocates who hold leading positions in different States. So we have followed the advice of the most competent, dependable and eminent person who could guide us in the matter.

 

Similarly, Sir, so far as High Courts are concerned, since 1950, 211 appointments have been made and out of these except one, i.e. 210 out of 211 were made on the advice, with the consent and concurrence of the Chief Justice of India.

 

I have listened to some of the speeches that were made and also gone through the record of the speeches, which unfortunately I could not myself personally listen to. It was suggested that the Chief Justice of India might make these appointments well, I do not know if that would approve matters because virtually they have been made by the Chie Justice of India. Only the orders were issued by us, and in any case the orders would have to be issued by the executive authority.’ (Emphasis supplied).

 

384.’Mr. S.K. Bose, Joint Secretary, Department of justice, Ministry of Law and Justice has filed an affidavit dated April 22, 1993 before us. In para. 6 of the said affidavit is stated as under:

 

As regards the appointments of Judges made, not in consonance with the views expressed by the Chief Justice of India, it ‘is respectfully submitted that since 111983 to 1041993, there have been only seven such cases, five of these were in 1983; (2nd January 1983, 2nd July, 1983, 1st August 1983) one in September 1985 and one in March 1991, out of a total of 547 appointments made during this period’. “

 

51. As regards Pakistan, the Federation has not filed any statistics to indicatein how many cases the recommendations of the Chief Justices of the High Courts and/or the Chief Justice of Pakistan were not accepted by the Executive in the past since the inception of Pakistan. However, Messrs Yahya BakhtiaT and Aitzaz,Ahsan, learned counsel appearing for the Federation, have candidly submitted that the recommendations of the Chief Justice of the High Court and/or the Chief Justice of Pakistan are accepted invariably. It is rarely not accepted. This position is also reinforced from the above extracts from the books written by late Justice Muhammad Shahabuddin and late Justice Muhammad Munir, both former Chief Justices of Pakistan.

 

Even otherwise if we were to assume that the Executive has the discretion to appoint Judges in the superior Courts, it is a wellsettled proposition of law that the discretion is to be exercised fairly and justly and not arbitrarily or in a fanciful manner. In this regard, reference may be made to the case of Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), the case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi. (PLD 1991 SC 14) and the case of Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563).

 

In the first case, it has been held that “Wherever wideworded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularising it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wideworded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times. “

 

In the second case, the above principle has been reiterated.

 

In the third case, this Court, while construing the provisions of the Foreign Exchange (Prevention of Payments) Act, 1972, held that “the impugned provisions are, therefore,, justifiably exposed to attack on the ground that the classification does not rest on any intelligible differentiate, which word means an attribute by which a species is distinguished from all other species of the same genus, or a distinguishing mark. The dicta laid down in the case of Waris Meah (supra) are also fully attracted in the present case, in that, as should be discussed next, the impugned provisions conferred unguided discretion to the executive to pick and choose to persons against whom claims would be invited. Therefore by virtue of the conferment of such unbridled discretion, the provision is ex facie discriminatory and arbitrary”.

 

52. I may examine the above issue from the Islamic point of view. I have already held in para. 22(vii) on the basis of various Islamic sources that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith, any extraneous consideration other than the merit is a great sin entailing severe punishment. The object of providing consultation inter alia in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord Constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court, which was obtaining prior to the independence of India and post­ independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary which has been assigned very difficult and delicate task of acting as watch dogs for ensuring that all the functionaries of the State act within the limits delineated by the Constitution and also to eliminate political considerations. Mohtarma Benazir Bhutto, as the then Leader of the Opposition, while making a speech on 145­ 1991 on Shari’ah Bill in the National Assembly, had rightly pointed out that the power of appointment of Judges in the superior Courts had direct/nexus with the  independence of judiciary. Since the Chief Justice of the High Court concerned  and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations, as pointed out hereinabove, have been consistently accepted during prepartition days as well as postpartition period in India and Pakistan. I am, therefore, of the view that the words “after consultation” referred to inter alia in Articles. 177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint or arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for Judgeship in the superior Courts, whereas the Governor of a Province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. I will not say that anyone of the above consultees/functionaries is less important or inferior to the other. All are’ important in their respective spheres. The Chief Justice of Pakistan, being Paterfamilias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely, his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to select best persons for the Judgeship of a superior Court keeping in view the object enshrined in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2A thereof, and ordained by our religion Islam to ensure independence of judiciary. Quaide­-Azam, the Founder of Pakistan, immediately after establishment of Pakistan, on 1421948, while addressing the gathering of Civil Officers of Balochistan, made the following observation which, inter alia included as to the import of discussions and consultations, copy of which is furnished by Mr. Yahya Bakhtiar:‑‑

 

“In proposing this scheme, I have had one underlying principle in mind, the principle of Muslim democracy. It is my belief that our salvation lies in following the golden rules of conduct set for us by our great lawgiver, the Prophet of Islam. Let us lay the foundation of our democracy on the basis of truly Islamic ideals and principles. Our Almighty has taught us that ‘our decisions in the affairs of the State shall be guided by discussions and consultations’. I wish you, my brethren of Balochistan, God speed and all success in the opening of this new era. May your future be as bright as I have always prayed for and wished it to be. May you all prosper.” (Underlining is mine).

 

The views of none of consultees can be rejected arbitrarily in a fanciful manner. I am further inclined to hold that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wished to degree with their views, it has to record strong reasons which will be justiciable. I am also inclined to hold that a person found to be unfit by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of 0 the Supreme Court cannot be appointed as it will not be a proper exercise of power to appoint under the above Articles of the Constitution.

 

It may be stated that there seems to be unanimity of views among the learned counsel appearing for the parties and the learned counsel appearing as amicus curiae that consultatory process is mandatory and without it n appointment/confirmation can be made. It must follow that in absence of consultation as contemplated and interpreted by this Court as above, the appointment/confirmation of a Judge in the superior Court shall be invalid. The above view which I am inclined to take is in consonance with the well established conventions, Islamic concept of ‘Urf’ and the proper exercise o power.

 

53. In our short order dated 2031996 we have refrained from interpreting Article 177 read with Article 180 of the Constitution as to the appointment of Chief Justice of Pakistan for the following reasons: ‑‑

 

“Firstly that in Constitution Petition No.29 of 1994, which is directly filed in this ‘ Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior .,During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner. did not press the prayer to that extent vide C.M.A.541K of 1996 dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly, the cases are pending in which the same subject­ matter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions. “

                                                                                                                                     

I would, therefore, deal only with the appointment of a permanent Chief Justice in a High Court as there are vacancies of the permanent Chief Justices in the High Courts and a guideline is to be provided so that the appointments are made in terms of the Constitution. In this behalf, it may be pertinent to refer to clause (1) of Article 193, which pertains to the appointments of High Court Judges and Chief Justice and original Article 196, which relates to appointment of Acting Chief Justice in the High Court. The same read as follows: ‑‑

 

Clause (1) of Article 193 of the Constitution:

 

193. ‑‑(l) A Judge of a High Court shall be appointed by the President after consultation‑‑

 

(a)   with the Chief Justice of Pakistan:

 

(b)   with the Governor concerned; and

 

(c)   except where the appointment is that of Chief Justice, with the Chief  Justice of the High Court. “

 

Clause (1) of Article 196 of the Constitution

 

“ 196. Acting Chief Justice. ‑‑At any time‑‑

 

(a)   the office of Chief Justice of a High Court is vacant, or

 

(b)   the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause,

 

the President shall appoint the most senior of the other Judges of the High Court to act as Chief Justice.”

 

A perusal of clause (1) of Article 193 indicates that for appointment of a Chief Justice of a High Court, the president is required to consult‑‑

 

(i) the Chief Justice of Pakistan;

 

(ii) Governor of the Province concerned.

 

It may further be noticed that under the original Article 196 of the Constitution, it was provided that the Resident shall appoint most senior of other Judges of the High Court in the events mentioned in abovequoted clauses (a) and (b) of Article 196. This was amended by President Order No. 14 of 1985. The amended last portion of Article 196 reads as under:‑‑

 

“the President shall appoint one of the other Judges of the High Court, or may request one of the Judges of the Supreme Court, to act as Chief Justice. “

 

Similarly Article 180 of the Constitution relating to the appointment of Acting Chief Justice of Pakistan was amended by President Order No. 14 of 1985 in the above terms. However, before the lifting of Martial law, theArticle 180 was restored in its original form, whereas Article 196 was not restored in its original form obviously for the reason that under the amended provision even a Judge of the Supreme Court can be requested to act as the Chief Justice of a High Court.

 

It may be observed that sending of a Supreme CourtJudge to a High Court as an Acting Chief Justice is undesirable in view of the adverse. observations in the judgment of this Court in the case of Abrar Hasan v. Government of Pakistan (PLD 1976 SC 315 at 342). Even otherwise this causes heart burning amongst the Judges of the High Court concerned, which is not conducive for maintaining congenial working relation.

 

It will not be out of context to state that at the time of creation of Pakistan, there were only two High Courts in Pakistan, namely, Lahore High Court and Dacca High Court. In Sindh, there was a Chief Court, whereas in N.­W.F.P. and Balochistan, there were Judicial Commissioners. However, at the time of creation of OneUnit upon framing of 1956 Constitution, West Pakistan High Court was created having jurisdiction throughout West Pakistan. It had its Principal Seat at Lahore and Permanent Benches at Karachi and Peshawar. The Province of Balochistan was catered by Circuit Benches.

 

After the fall of Dacca and upon the dissolution of OneUnit in 1971, three High Courts emerged, namely, Lahore High Court, a Joint High Court for Sindh and Balochistan, and Peshawar High Court. in December, 1976, Sindh and Balochistan High Court was bifurcated and a separate Balochistan High Court was established.

 

Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing as amicus curiae, pointed out that just before partition, Mr. Justice Abdur Rashid was appointed as the Chief Justice of Lahore High Court on the basis of seniority as he was the senior most Judge at that time.

 

Mr. Muhammad Akram Sheikh, learned counsel appearing as amicus curiae, has also urged that it has been the consistent practice/convention to appoint the senior most Judge as the Chief Justice in the High Court against permanent vacancy. He pointed out that whenever rarely the above convention was broken, there was a lot of resentment in the Bar and the Judiciary itself. He pointed out that during Ayub Khan’s regime, Mr. Manzoor Qadir was directly appointed as the Chief Justice of West Pakistan High Court for the reason that there was split among the senior Judges at Lahore Bench on account of Mr. Gardezils case with his wife Renata. He further submitted that Mr. Manzoor Qadir was an outstanding Jurist in the SubContinent but his above appointment was resented by the Bar as well as by the Bench. Consequently, he resigned within about one year. He also invited our attention to the facturn that in or about 1972, Mr. Tufail Ali’Abdur Rahman, who was also an outstanding Jurist of repute, was directly appointed as the Chief Justice in the then High Court of Sindh and Balochistan, which was also resented by the Bar and the Bench inasmuch as Mr. Justice Nurul Arfin, who was the then most senior Judge, took retirement. However, Mr. Tufail Ali Abdur Rahman died after short period. He further invited our attention that after the dissolution of OneUnit, in Lahore High Court Mr. Justice Aslam Riaz Hussain was appointed as the Chief Justice by superseding a number of his colleagues. This too was resented by the Bar as well as by the Bench.

 

It seems that before the Partition of India as well as after partition, most senior of the High Court Judges were appointed as the Chief Justices except in the above three cases; out of the above three appointments, two of the persons were outsiders and they were Jurists of outstanding calibre in the SubContinent. They had not superseded any sitting Judges. The only supersession which had taken place was that in the case of appointment of Mr. Justice Aslam Riaz Hussain.

 

The rule of seniority was recognized even under the Government of India Act, 1924. Section 103 thereof provided as follows:‑‑

     “103 (1) The Chief Justice of a High Court shall have rank and precedence before the other Judges of the same Court.

 

       (2) All the other Judges of a High Court shall have rank and precedence according to the seniority of their appointments, unless otherwise provided in their patents.”

 

The above provision was retained in the subsequent enactments. The above rule of seniority was maintained while appointing the Chief Justices in the High Courts before partition as well as postpartition. This practice/convention was accorded Constitutional recognition by incorporating Article 196 in the Constitution by providing that in case of vacancy or when the Chief Justice of a High Court is unable to perform his functions, the most senior of other Judges of the High Court to act as Chief Justice. The Constitution further reinforces the seniority rule by maintaining it under clause (2) of Article 209 by providing as under:‑‑

“(2). The Council shall Consist of--

(a)’ the Chief Justice of Pakistan;

(b)  the two next most senior Judges of the Supreme Court; and

(c)  the two most senior Chief justices of High Courts.”

 

The Supreme Court of India in the case of Supreme Court Advocates onRecord Association (supra), Verma, J. who spoke for himself and on behalf of four learned brethren, maintained the rule of seniority.

 

It is true that in Article 193 of the Constitution which relates to inter alia to the appointment of a Chief Justice in a High Court, it has not been provided that most of the senior of Judges shall be made as the Chief Justice. The reason seems to be obvious, namely, it is possible that the senior most Judge, at the relevant time, may not be physically capable to take over the burden of the office or that he may not be willing to take upon himself the above responsibility. The Chief Justice of Pakistan, who is one of the consultees under Article 193 will be having expertise knowledge about the senior most Judges of a High Court. If the senior most Judge is bypassed for any of the above reasons, he cannot have any grievance but if he is superseded for extraneous considerations, the exercise of power under Article 193 of the Constitution will not be in accordance therewith and will be questionable.

 

I am, therefore, of the view that keeping in view the provisions of the Constitution as a whole and the wellestablished convention as to the appointment of the senior most Judges in the High Court as the Chief Justice followed consistently in conjunction with the Islamic concept of ‘Urf’. The most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

 

Before parting with the discussion on the above question, I may observe that there seems to be wisdom in following the convention of seniority. If every Judge in a High Court aspires to become Chief Justice for the reason that he knows that seniority rule is not to be followed, it will adversely affect the independence of judiciary. The junior most Judges may feel that by having good terms with the Government in power he can become the Chief Justice. This will destroy the institution and public confidence in it. The Chief Justices of the High Courts have the power to fix the roster i.e. to decide when a case is to be fixed and before whom it is to be fixed. In other words, they regulate the working of the forum It is, therefore, very important that the Chief Justices should not be  pliable and they should act independently.

 

54. I may revert to question No.(iii), namely, whether the President is required to appoint the permanent Chief Justice of Pakistan or a Judge of the Supreme Court or a permanent Chief Justice of High Court in case of vacancy under Articles 177 and 193 within certain period or can he allow acting appointment of the Chief Justice of Pakistan, a Judge of the Supreme Court and a Chief Justice of High Court under Articles 180, 181 and 196 respectively indefinitely for years. In this regard, it may be pertinent to mention that Messrs Fakhruddin G. Ebrahim and S.’M. Zafar have vehemently argued that an Acting Chief Justice is not a consultee ‘in terms of the relevant Articles of the Constitution. According to them, an Acting Chief Justice is a stopgap arrangement for a short period, Articles 180 and 196 of the Constitution relating to appointment of Acting Chief Justices cannot take over Articles 177 and 193 which pertain to the permanent appointments of Chief Justice of Pakistan and Chief Justice of a High Court. Both also urged that though under Article 181 an Acting Judge can be appointed in the Supreme Court against a permanent vacancy but this is also a stopgap arrangement to cater the case where vacancy occurs all of a sudden and not on the due date because of death or because of the fact the incumbent resigns or is removed.

 

Mr. S. M. Zafar has invited our attention to the factum that all the books and literature relating to judiciary are unanimous on the question that permanency or definiteness in appointments is necessary for independence of judiciary, having acting incumbents against the permanent vacancies undermine the same. According to him though Article 260, which defines various terms used in the Constitution, provides that the Chief Justice will include the Judges for the time being acting as Chief Justice of the Court, but this is for the purpose of stopgap arrangement. To reinforce the above submission, he has referred to the definition of the word “include” from Ai yar’s Judicial Dictionary, Tenth Edition, and contended that the meaning of the above word indicates that it purports to bring something which does not belong to the specie.

 

Mr. Sharifuddin Pirzada has invited our attention to the speech of QuaideAzain made in 1931 in the Federal Structure SubCommittee of the Second Indian Round Table Conference, while speaking on the composition, jurisdiction and other matters confronting the future of Federal Court. The relevant portion of the same reads as under:‑‑

 

“Then, Sir, there is the other question with regard to the Letters Patent Appeals and Additional Judges being appointed, and the provisions in the Government of India Act as to fixing the quota for the certain number of members of the Civil Service. All those matters do not strictly arise out of this question which we are at present discussing; but I am in. general agreement with Sir Tej Bahadur Supru. I quite agree with him that this practice of appointing Additional Judges is not desirable. I remember, in my High Court, recently knocking against about half a dozen Judges, who had been on the Bench, roaming about in the corridors of the High Court with briefs in their hands.”

 

Mr. Jinnah: “It is demoralising to the Bench; it is demoralising to the profession. I think it is an undesirable practice. Once you appoint a Judge, let him remain there. It may be pressed on the ground of economy, but I think in the long run it does more harm.”

 

He has also produced Human Rights Commission’s Resolution No.1994/41 as a result of the Human Rights Commission meeting at Geneva The relevant portions of the same read as follows: ‑‑

 

Sir Tej Bahadur Sapru: “Or possibly without briefs”

 

“34. In his study, Dr. Singhvi correctly noted that the violation of the principle of the independence of justice ‘is by no means a stray occurrence’ (para. 372). Indeed, he listed what he described as 26 “types of deviance” relating to Judges and yet another 26 relating to lawyers. Because these occurrences are at the heart of the present study, it is perhaps worth repeating them.

 

35. Those which affect Judges were categorized as follows:‑‑

 

(c)    appointment of Judges for a limited term or on an acting or officiating basis, and confirmation of Judges in permanent posts and tenure on political considerations;

 

(d)     in countries where promotion or confirmation of Judges proceeds by established rules or conventions rather than by exercise of executive discretion, abrogation of rules or conventions for promotion may be considered as a variant of the punitive use of transfers;

(e)      ……………….

(f)       ……………….

(g)      ……………..

(h)      ……………….

(i)        ……………….

(j)       …………………

(k)     ………………..

(l)        ………………….

 

(m)  promotion of Judges on the basis of extraneous considerations and neglect of ability and integrity in matters of judicial promotions;

 

(n)   use of temporary, ad hoc, parttime tenures by the executive to object the judiciary to a phychosis of fear;”

 

He has further referred to the relevant portion of the speech relating to judiciary of Mr. I.I. Chundrigar in the Pakistan Constituent . Assembly made by him while moving Bill for 1956 Constitution, which reads as, follows:‑‑

 

“Then the Supreme Court Judges and the High Court Judges are not removable once they are appointed, except by following the procedure prescribed therein. This would, in my humble opinion, completely safeguard the independence of the Judiciary and that is a matter which will really secure the rights of the people.

 

Sir, the independence of the Judiciary is a principle very dear to the people of this country, who believe that they receive justice from the Courts of this country and that their rights are safe in the hands of the Judges. The impartiality of Judges is one aspect of the nature of the Judges, of which another is independent. A Judge who is not independent cannot be impartial. The provisions in the Bill are intended to ensure the independence of the Judges and to preserve it in future as it is preserved at present. We have at the outset made provisions in the Constitution which make the interpretation of the Constitution by the Supreme Court final. We cannot give greater assurances to say that justice is given in Pakistan in a real and unpolluted form ......

 

There seems to be force in the above contention of Mr. S. M. Zaf as admittedly there is no security of tenure for an acting incumbent. We are experienced recently that Mr. Justice Saad Saood Jan, the senior most Jud e of  the Supreme Court, was appointed as Acting Chief Justice of Pakistan  the permanent vacancy but the notification of his appointment was withdrawn within a day without assigning any reason after about one and a half months. Same is the position of an acting Judge of the Supreme Court as under clause (2) of Article 181, it has been provided that “An appointment under this Article shall continue until it is revoked by the President”. The case of an Acting Chief Justice of a High Court is also identical as he can also be removed at any time. According to Mr. S. M. Zafar, our Constitution provides guidelines as to the time within which a Constitutional office is to be filled in particularly of the head of an institution. He has invited our attention to clause (5) of Article 41 of the Constitution which lays down that an election to fill a vacancy in the office, of President shall be held not later than 30 days from the occurrence of the vacancy. His submission was that date of retirement of an incumbent of the office of Chief Justice of Pakistan or a Judge of the Supreme Court or a Chief Justice of a High Court is known to the Federal Government from the dates when the above incumbents are appointed and, therefore, the process of appointment of the successors should be initiated much in advance so that the:: successors should be appointed a few days before the incumbent retires. It is only in case of vacancy which occurs on account of death or any other unforeseen reasons, the appointment is to be made after the occurrence of the vacancy, in such cases, according to him, at the most, 30 days’ time is sufficient as provided under clause (5) of Article 41 for the President’s election.

 

Mr. Riazul Hassan Gilani, from the Islamic Jurisprudence’s point of view, has urged that under it an acting incumbent carries out day to day work and not other important works. He also submitted that Hazrat Umar, when he was grievously injured by a Jew while leading morning prayers, fixed three days’ period for electing his successor by a panel on six Sababis and, therefore, according to him, this indicates that the permanent vacancy of an important public office is to be filled in within shortest possible period of three days. He has invited our attention to the following portion from the book under the title:

 

From the abovequoted passage from the Islamic history, the following facts emerge;----

 

(i)    That Hazrat Umar did not nominate his successor but left the matter to the wellknown Sahabis for electing his successor,

 

(ii)   that he fixed the period of three days for electing his successor; and

 

(iii)   that he authQrized Hazrat Suhaib Bin Sanan Roomi to lead prayer in his place for three days, but he was not authorized to carry out any State functions.

 

I am, therefore, of the view that it is the Constitutional obligation of the President/Executive to ensure that the Constitutional offices do not remain vacant and the vacancies are filled in without any delay. The provisions relating to appointments of Acting Chief Justice of Pakistan, Acting Judges of the Supreme Court and Acting Chief Justice of a High Court are intended and designed to cater for emergency. They cannot be used as a substitute for making permanent appointments under Articles 177 and 193 of the Constitution.  of the High Courts, namely, Lahore and Sindh have been headed by Acting Chief Justices for the last nearly two years. In Peshawar High Court there is an Acting Chief Justice since for about a year. In other words out of 4 High Courts in 3 of them which cater for about 94% population of the country, we have Acting Chief Justices. This state of affairs militates against the independence of judiciary and is violative of the Constitution. I am, therefore, of the view that a normal permanent vacancy should be filled in advance and, in any case, not later than 30 days, whereas vacancy occurring on account of death or for any unforeseen cause, at the most, should be filled in within 90 days, which is generally considered to be a reasonable period.

 

The above view, which I am inclined to take, is in consonance with the provisions of the Constitution, keeping in view the concept of the independence of judiciary as enshrined therein. It is also in accord with the above speech of the QuaidiAzam, wherein he depricated the practice of appointment of Additional Judges. It is further in line with the aforesaid International Human Rights Commission’s Report.

 

55. This leads me to the fourth question, namely whether an Acting Chief Justice is not a consultee under Articles 177 and 193 of the Constitution. I have already referred to Messrs S. M. Zafar and Fakhruddin G. Ebrahim’s submissions in this regard. Mr. Muhammad Akrarn Sheikh, learned counsel also vehemently submitted that an Acting Chief Justice cannot be a consultee as he is to select a person for judgeship who may sit in the Court for more than two decades and, therefore, the permanent incumbent will be in a better position to give his views. His further sub ‘ mission was that a permanent incumbent will not be susceptible to any executive influence and, therefore, the selection will be on

merits. In this regard, I may observe that the concept of an Actin Chief justice was introduced during prepartition days as the Chief  to be Englishmen and they used to go on leave to United Kingdom. The provisions of Justice Acting Chief Justices were retained by India in its Constitution and by Pakistan in its four Constitutions which we had up to 1973. The object of Acting Chief Justice is to have a stopgap arrangement. It is a matter of common knowledge that most of the Acting Chief Justices do not take any decision, relating to important policy matters of the Court concerned without consulting the permanent Chief Justice. If the permanent incumbent concerned is not accessible, the acting incumbent waits for his return. However, unfortunately during Martial Law days, the practice of appointing Acting Chief Justices for

 

 

long periods as adopted apparently with the intention to keep the judiciary  under the control of executive, which was not a commendable object. It militated against the concept of independence of judiciary and separation of judiciary from the executive. I have already stated here in above that even now there are Acting Chief Justices in three High Courts and the Federal Shariat Court. It may be pointed out that under Article 203C(4), the Chief Justice of Federal Shariat Court is to be appointed for a period not exceeding three years, but he may be appointed for further term or terms as the President may determine. The notification dated 1871994 of the present incumbent, which has been filed in the present proceedings, indicates that he was appointed on 1871994 with immediate effect and until further orders.

 

Keeping in view the concepts of independence of judiciary, separation of judiciary as enshrined in our Constitution and the guidelines provided therein as to the time of filling in of the public offices in conjunction with the Islamic! Jurisprudence, I am inclined to hold that an Acting Chief Justice is not a consultee for the purpose of Articles 177 and’ 193 of the Constitution’ as the appointment of Acting Chief Justices is a stopgap arrangement for a short i period not for more than 90 days. However, I may clarify that if a permanent incumbent has fallen sick seriously and he remains in the hospital or under treatment and is not in a position to perform his functions and because of that an Acting Chief Justice remains in office for more than 90 days, in such a case, the Acting Chief Justice may consult,the permanent incumbent while acting as a consultee, under the above Articles, but if it is not possible to consult the permanent incumbent, in that event, the Acting Chief Justice will be a consultee for the purpose of the above Articles because of the doctrine of necessity.

 

It may also observe that if a permanent incumbent of the office of a Chief Justice of a High Court is appointed in the Federal Shariat Court with the object to ~ bring an Acting Chief Justice inter alia for obtaining his recommendations for appointment of judges as per desire of the Government in power, that will be violative of the spirit of the Constitution and will be mala fide in fact and in law, which will vitiate the entire exercise.

 

The allegation of the petitioner in the petition was that the Chief  Justice of re and Sindh High Courts were appointed as the Judges of the Federal Shariat Court inter alia for the above object, which allegation is denied by the Federation.

 

We wanted inter alia to examine the record of the above two Chief Justices in respect of their appointments in the Federal Shariat Court to ascertain the reasons which prompted the Federation to take above actions. But this was resisted by it.

 

In this view of the matter an adverse inference can be drawn.

 

56. I may revert to question No.(v) framed by me, namely, under what circumstances ad hoc Judges can be appointed in the Supreme Court and for what period, and whether such appointment can be made without first filling in the total sanctioned strength under Article 177 of the Constitution. There seems to be unanimity of views among the learned counsel for the petitioners/appellants and learned amicus curiae that an ad hoc Judge in the Supreme Court cannot be appointed in presence of permanent vacancy. Mr. Yahya Bakhtiar, learned counsel appearing for the Federation, submitted that factually the Federal Government is not involved in the appointment of ad hoc Judges as the power is given to the Chief Justice. He requests a Judge of the High Court with the approval of the President to attend sit ‘ ting of the Supreme Court as an ad hoc Judge. Mr. S. M. Zafar has also urged that while permanent vacancies in the Supreme Court exist, even the Chief Justice of Pakistan cannot make a request for the appointment of an ad hoc Judge. It may be advantageous to reproduce Article 182 of the Constitution relating to the appointment of ad hoc Judges. The above Article reads as under:­

 

182. If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,---

 

(a)    with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or

 

(b)    with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court, to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court.

 

A perusal of the abovequoted Article indicates that if the Chief Justice is of the view that it is not possible for want of quorum of Judges of Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, may in writing­;

 

(a) with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or

 

(b) with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court, to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary.

 

It is evident from the abovequoted Article that such a request can only be made if “it is necessary to increase temporarily the number of Judges of the Supreme Court”, for the two reasons given hereinabove. It implies that in presence of permanent vacancies in the Supreme Court, above Article 182 of the Constitution cannot be invoked and an ad hoc Judge cannot be appointed keeping in view the provision of Article 181 of the Constitution, under which an Acting Judge of the Supreme Court can be appointed against a permanent vacancy. Thus, Mr. S. M. Zafar’s submission seems to be correct. I may also observe that under Article 260 of the Constitution, which defines the various terms including “Judge”, the definition of the Judge given therein does not include an ad hoc Judge. In other words, he is not a Supreme Court Judge for the purpose of various Articles of the Constitution except for the purpose of Article 182 thereof. The practice of appointing ad hoc Judge against the permanent vacancies seems to be violative of the above provisions of the Constitution. This also militates against the independence of judiciary as highligbted by QuaideAzam ‘Muhammad Ali Jinnah in his speech of 1931 before the above SubCommittee, and the International Human Rights Commission at Geneva referred to hereinabove. Reference may also be made to the following observations of Lord Denning in his book under the caption “What Next In The Law”:‑‑

 

“Lions under the throne”

 

It was Francis Bacon in his Essay, Of Judicature, who said;

 

Let Judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’

 

True enough if the Throne is occupied by a Constitutional monarch as ours is. But the Judges are not to be lions under the Government of the day‑‑or of any Government. They, are and must be independent of the executive Government‑‑ready to check or oppose it if it should in any way misuse or abuse its power.

 

Francis Bacon ends his essay with a less controversial percept;

 

Let not Judges also be so ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws. For they may remember what the Apostle saith of a greater law than theirs: Nos scimus quia lex. boan est, mode quis ed utatur legitime’

 

which is translated in the Authorized Version, I Timothy 1:8;

 

‘But we know that the law is good, if a man uses it lawfully’.”

 

It will not be out of context to quote the relevant portion from the “Commentary on the Constitution of India”, Sixth (Silver Jubilee) Edition, 1983 (VolG) by Mr. Justice Basu on Article 127 of the Indian Constitution, which deals with the appointment of ad hoc Judges in the Supreme Court and which reads as under:‑‑

 

“Cl. (1). Ad Hoc Judges.‑‑‑No such appointment has so far been made.

 

The abovequoted comments of the above author of well repute on Indian Constitution indicate that in India, no ad hoc appointments of Supreme Court Judges were made during nearly 33 years from the date of enforcement of the Indian Constitution as the above book was published in 1983.

 

The upshot of the above discussion is as under:‑‑

 

(i)    That no ad hoc Judge can be appointed under the above Article while permanent vacancies exist;

(ii)  that an ad hoc Judge is to act for a short period for attending the sittings of the Supreme Court; and

(iii)   that he is not a Judge of the Supreme Court except for the purpose of  the cases in which he sits and participates.

57.  I may now take up questions Nos. (vi) and (vii), which read as under: ‑‑

 

(vi)  Whether Additional Judges can be appointed under Article 197 of the Constitution against permanent vacancies for an indefinite period?

 

(vii) Whether the Additional Judges appointed against permanent vacancies under Article 197 of the Constitution have any right to be considered for permanent appointment?

 

The above questions are interlinked and, therefore, I intend to deal with the same together. Mr. Sharifuddin Pirzada has traced the history, as to how the provision for Additional Judges was introduced. He pointed out that under section 3 of the Indian High Courts Act, 1911, the GovernorGeneralinCouncil was empowered to appoint from time to time persons to act as Additional Judges  of any High Court for such period not exceeding two years as may be required. He also pointed out that under President’s Order PostProclamation No.3 of 1958, the Courts (Additional Judges) Order, 1958 was issued on 19111958 after Ayub Khan took over the power. The above Order came into force at once. Article 2 of it provided that “If by reason of any temporary increase in the business of the Supreme Court or of a High Court or by reason of arrears of work in any such Court it appears to the President that the number of the Judges of the Court should be for the time being increased, the President may appoint persons duly qualified for appointment as Judges to be Additional Judges of the Court for such period not exceeding two years as he may specify. “

 

It will not be out of context to mention that the above provision was lifted from clause (1) of Article 224 of the Indian Constitution, 1950, which reads as follows:‑‑

 

“224. Appointment ofadditional and acting Judges.‑‑‑(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President thatthe number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.”

 

At this juncture, it may be pertinent to mention that in 1956 Constitution, there was no provision for appointment of Additional Judges in view of above speech of QuaideAzam made by him in 1931 in the aforesaid SubCommittee depricating the practice of appointing Additional Judges. But in 1958, the then President Ayub Khan issued the above President Order. Article 96 was incorporated in 1962 Constitution for appointment of Additional Judges even against permanent vacancies. This provision has been lifted in 1972 Interim Constitution and 1973 Permanent Constitution.

 

It may be noticed that under the above President Order of 1958 and under clause (1) of Article 224 of the Indian Constitution, an Additional Judge could be appointed in the following, two contingencies: ‑‑

 

(i) temporary increase in the business of a High Court; and

 

(ii) temporary increase in arrears of work.

 

Whereas under Article 197 of the Constitution, an Additional Judge can be appointed against a permanent vacancy or when a High Court Judge is absent or is unable to perform the functions of his office due to any other cause or for any reason it is necessary to increase the number of Judges of a High Court. In other words, under Article 224(l) of the Indian Constitution, the appointment of an Additional Judge is purely temporary to achieve the above two objects, whereas under our Constitution, though the appointment of an Additional Judge is to be made for a period not exceeding two years but an Additional Judge can be appointed against a permanent vacancy. This makes a lot of difference.

 

I may observe that the parity of reasoning for not appointing an Acting Chief Justice or an Acting Judge in the Supreme Court against, permanent vacancies for a long period is equally applicable to an appointment of an Additional Judge in the High Court against a permanent vacancy. However, I may point out that a practice/convention has developed in Pakistan that in the High Courts Judges are first appointed as Additional Judges; either for a period of one year initially and then this period is extended to two years or they are initially appointed for a period of two years (during 1977 Martial Law this  period was extended to three years) and then they are appointed as permanent Judges. Since there was no provision in the late Pakistan Constitution of 1956, which remained operative for a short period, for appointment of Additional Judges, in those days Judges in the High Courts initially were appointed permanently. In India, the controversy arose, as to whether the Additional Judges have any right to be considered for appointment as permanent Judges even though they were not appointed against permanent vacancies. The above controversy came up for hearing before the Supreme Court of India inter alia in the case of S.P. Gupta (supra). Bhagwati, J., who was one of the Judges of the majority view, held that though an Additional Judge is not entitled as a matter of right to be appointed as an Additional Judge for a further term on expiry of his original term or as a permanent Judge, the only right he has, is to be considered for such appointment and this right also belonged to him not because of clause (1) of Article 224 of the Indian Constitution but because of peculiar manner in which clause (1) of Article 224 has been operated for quarter of a century, namely, that the Additional Judges were appointed as permanent. He observed as follows:‑‑

 

“The entire object and purpose of the introduction of clause (1) of Article 224 was perverted and Additional Judges were appointed under this Article not as temporary Judges for a short period who would go back on the expiration of their term as soon as the arrears are cleared off, but as Judges whose tenure, though limited to a period not exceeding two years at the time of each appointment as an Additional Judge, would be renewed from time to time until a berth was found for them in the cadre of permanent Judges. By and large, every person entered the High Court Judiciary as an Additional Judge in the clear expectation that as soon as a vacancy in the post of a permanent Judge became available to him in the High Court he would be confirmed as a permanent Judge and if no such vacancy became available to him until the expiration of his term of office, he would be reappointed as an Additional Judge for a further term in the same High Court. Therefore, far from being aware that on the expiration of their term, they would have to go back because they were appointed only as temporary Judges for a short period in order to clear off the arrears ‑‑ which would have been the position if clause (1) of Article 224 had been implemented according to its true intendment and purpose ‑‑ the Additional Judges entered the High Court judiciary with a legitimate expectation that they would not have to go back on the expiration of their term but they would be either reappointed as Additional Judges for a further term or if in the meanwhile, a vacancy in the post of a permanent Judge became available, they would be confirmed as permanent Judges. This expectation which was generated in the minds of Additional Judges by reason of the peculiar manner in which clause ‘(1) of Article 224 was operated, cannot now be ignored by the Government and the Government cannot be permitted to say that when the term of an Additional Judge expires, the Government can drop him at its sweet will. By reason of the expectation raised in his mind through a practice followed for almost over a quarter of a century, an Additional Judge is entitled to be considered for appointment as an Additional Judge for a further term on the expiration of his original term and if in the meanwhile, a vacancy in the post of a permanent Judge becomes available to him on the basis of seniority amongst Additional Judges, he has a right to be considered for appointment as a permanent Judge in his High Court.”

 

Bliagwati, J. further observed as under:‑‑

 

“So long as the case of the Additional Judge is considered by the Central Government for reappointment or appointment as the case may be, the decision of the Central Government cannot be questioned except on the ground that it was reached without full and effective consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India or that it was based, on irrelevant considerations. Where such a challenge is made, the burden is on the Central Government to show that there was full and effective consultation and the decision was based on relevant considerations. In fact, whereas Additional Judge is not appointed as an Additional Judge for a further term or as a permanent Judge despite the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India, the decision of the Central Government would prima facie be liable to attack and the burden would lie heavy on the Central Government to show that it had cogent reasons to disagree with the Chief Justice of the High Court and the Chief Justice of India.”

 

Mr. Sharifuddin Pirzada has also produced the relevant extracts from the “Constitutional Law of India” by H. M. Seervai, Third Edition, Volume II, wherein the author has observed as under: ‑‑

 

“25.178. The practice of appointing Judges and then confirming them as permanent Judges, had been followed under the G.I. Act, 35 and even before. No doubt a few Additional Judges resigned and reverted to ‘practice at the Bar. Again,’ on very rare occasions an Additional Judge was not reappointed. However, the practice of appointing Additional Judges, and then making them permanent Judges, reinforced by the English tradition of an independent judiciary, posed no problems about the independence of the Judiciary. This was because although an Additional Judge had, in theory, no security of tenure, for all practical purposes his, tenure of office was secure. The French Conseil d’Etat shows how an important practice, reinforced by tradition, can effectively secure judicial independence ... ... ... ... ... ... Tulzapurkar, J. said, first, that there was a valid classification between proposed appointees for initial recruitment and a sitting Additional Judge, who had a preferential right to be considered for reappointment. Secondly, unlike a proposed initial appointee, an Additional Judge had an enforceable right not to be dropped illegally and/or the whim or caprice of the appointing authority, and to be considered for continuance either as Additional Judize or for appointment as a permanent Judge in the High Court ... ...

 

25.230C. The salient facts for deciding the central issue are not in dispute. They show that all talk of safeguards in the reappointment of an Additional Judge, or against the arbitrary or mala fide dropping of an Additional Judge, sounds well on paper, but has no relation to reality. Confining ourselves to Additional Judge, it is said that there are two safeguards before an Additional Judge is dropped. First, an Additional Judge can be dropped only in the public interest, and not mala fide or for extraneous considerations. Secondly, he can be dropped only after full consultation as required by Article 217(l). The consultation between the Chief Justiceof India, and the Chief Justice of the High Court, were designed to secure competent advice as to the fitness of a person to be a High Court Judge, and a sitting Additional Judge had already passed that test.”

 

From the above Indian Supreme Court judgment and the comments of the above author, it seems that in India though Article 224(l) does not visualis6 appointment of an Additional Judge against. a permanent vacancy and the appointment is purely temporary but on account of practice/convention developed during 25 years, it has been held that an Additional Judge had the right to be considered for appointment as a permanent Judges and that the decision of the Central Government cannot be questioned except on the ground that it was reached without full and effective consultation of the State and the Chief Justice of India or that it was based on irrelevant considerations. It has been further held that where such challenge is made, the burden is on the Central Government to show that there was full and effective consultation and the decision was based on relevant considerations. It was also held that where an Additional Judge is not appointed as an Additional Judge for a further term or as a permanent Judge despite the unanimous opinion of the Chief Justice of India, the decision of the Central Government would prima facie be liable to attack and the burden would lie heavily on the Central Government to show that it had cogent reasons to disagree with the Chief Justice of the High Court and the Chief F Justice of India. However, in Pakistan, the above Article 197 is on different footing as it inter alia postulates the appointment of an Additional Judge against a permanent vacancy. It is also wellestablished practice/convention that if an Additional Judge performs his functions during the period for which he was appointed to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he has always been appointed as a permanent Judge except in a rare case. In this view of the matter,’ a person who is appointed against a permanent vacancy as Additional Judge in a High Court or if a permanent vacancy occurs during his period as an Additional Judge, he acquires a reasonable expectancy to be considered as a permanent Judge and in case he is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, he is to be appointed as such in the absence of very strong reasons to be recorded by the President/Executive which may be justiciable. Additionally, the Executive, instead of accepting the recommendations of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan for permanent appointments without further consulting them, cannot extend the period instead of appointing them on permanent basis as recommended by the two Chief Justices.

 

58. Before dealing with the provisions relating to the Federal Shariat Court, I may deal with the question No.(ix), namely, as to whether the requirement provided for in Article 193(2)(a) of the Constitution for a candidate of a High Court judgeship, namely, he has for a period of or for periods aggregating not less than ten years been an Advocate of a High Court refers to the actual practical experience at the Bar or does it refer to the period of enrolment as an Advocate of the High Court? The contention of Mr. Khairi as well as the learned counsel appearing as amicus curiae was that the above subclause (a) of clause (2) of Article 193 refers to the actual practice/experience at the Bar and not the period of enrolment, whereas the submission of the learned counsel for the Federation, Messrs Yahya Bakhtiar and Aitzaz Ahsan, was that it relates to the period of enrolment. They heavily relied upon the above foreign treatises/publications, in which it has been mentioned that in UA.A. and U.K. experience at the bar was not a precondition for appointment as a Judge in the superior Courts; I have already dealt with hereinabove the reason as to why in U.S.A., the past experience at the bar for appointment in the U. S. Supreme Court was not considered as a precondition. I have also quoted hereinabove the relevant portions from the booklet issued by the Lord Chancellor’s office in U.K. about the procedure obtaining in England for appointment of the Judges in various Courts. From the above extracts, it is evident that the appointments are nowadays made purely on merits.

 

I have also quoted hereinabove various Verses from the Holy Qur’an and the relevant portions of the letter of Hazrat Ali Karam Allah Wajho, addressed to Ashter Malik, 1he Governor of Egypt, from which it is evident that Islam enjoins that, while selecting the Judges, the authority should select the people of excellent character, superior calibre and meritorious record having deep insight and profound knowledge.

 

if we we’re to read carefully subclause (a) of clause (2) of Article 193 of the Constitution, it becomes evident that 10 years’ period referred to in sub­clause (a) thereof relates to experience and not the period of enrolment. Under clause (b) thereof not less than 10 years’ period is provided for civil servants for being eligible for consideration for appointment as a Judge of the High Court and out of the above 10 years, it has been provided that for a period of not less than three years, he must have served as or exercised the functions of a District Judge in Pakistan. The above subclause (b) speaks of actual experience in service and, therefore, if it is to be read with subclause (a), it becomes evident that subclause (a) also refers to the experience. In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by subclause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not? It is a matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.

 

59. As regards question No.(x), namely, whether the political affiliation of a candidate for judgeship is a disqualification, I may observe that Mr. Khairi and the learned counsel appearing as amicus curiae have vehemently contended that a candidate for judgeship should not ,have political affiliation. They emphasised that a person having political affiliation would not inspire public confidence.

 

On the other hand, Mr. Qazi Muhammad Jamil, learned Attorney-­General, as well as Messrs Yahya Bakhtiar and Aitzaz Ahsan have vehemently contended that the mere fact that a candidate has political affiliation with a political party, is no disqualification. The learned AttorneyGeneral has referred to the examples of American Chief Justices, Marshall and Earl Warran, the former was the Secretary of State before elevation and the latter was Governor of California. He also cited example of Justice K. Iyer of India, who was a Minister in Karnatak Province, and in Pakistan Mr. Justice Zahoorul Haq, Mr. Justice Ghous Ali Shah and Mr. Justice Akhtar Ali G. Qazi. Mr. Aitzaz Ahsan has relied upon inter alia the abovequoted extracts to show that in the Supreme Court of United States, Judges were appointed who had political affiliation, which was not considered as a disqualification and so was the case in U.K.

 

However, I may observe that there seems to be a change in the above trend recently in U.S.A. as well as in U.K. In my humble view, a person cannot be appointed as a Judge simpliciter for the reason that he has political affiliation with a particular political party, but if he is a man of integrity and has sound knowledge of law and is recommended by the Chief Justice of the High court concerned and the Chief Justice of Pakistan, then his past political affiliation  will not be a disqualification. A person of integrity and sound knowledge normally severs his past connections with the political party with which he had affiliation and decides the matter purely on merits. However, it will be desirable not to appoint a person who is a strong activist in a political party and for him it will not be possible to erase unconscious tilt in favour of his party.

 

The learned counsel for the Federation also referred to the facturn that after the establishment of Pakistan, most of the Judges, who were elevated to the Bench, were active Muslim Leaguers during prepartition days.

 

In my humble view, their case is distinguishable as during prepartition days, Muslims were fighting for a homeland. It was a joint cause of all clauses of persons belonging to our religion Islam. Secondly, in those days, generally people were of high calibre and integrity, which unfortunately, we are lacking nowadays.

 

I am, therefore, of the view subject to what I have observed hereinabove that simpliciter political affiliation of a candidate for judgeship of a superior Court may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice or Pakistan.

 

60. I may now take up question No.(viii), namely, whether is there any conflict between Articles 203C(4)(4B) and 209 of the Constitution. If yes, can it be resolved. If not, what is its effect? Mr. Khairi, Mr. Raja Muhammad Akram and almost all the learned counsel appearing as amicus curiae contended that transfer of a sitting Chief Justice of a High Court or a sitting Judge of the said Court to the Federal Shariat Court is a punishment, the Government transfers those Judges to the Federal Shariat Court, who are not liked by it. Mr. Yahya Bakhtiar has candidly submitted that the Chapter relating to the creation of Federal Shariat Court in the Constitution was incorporated by the then Chief Martial Law Administrator, late Ziaul Haq, mala fidely with the object to keep the judiciary under his influence and control. According to him, the transfer of a sitting Chief Justice or a sitting Judge of a High Court to the Federal Shariat Court is a punishment. He also pointed out that there is a conflict between clause (4B) of Article 203C and Article 209 of the Constitution.

 

Mr. S. M. Zafar was of the view that Article 203C is a specimen of bad drafting. However, Mr. Qazi Muhammad Jamil, learned AttorneyGeneral, has submitted that as under Article 203C the President has the power to appoint any High Court Judges including the Chief Justice, no exception can be taken.

 

Mr. Yahya Bakhtiar has also submitted that since the above Article is in the Constitution, it is invoked by the Government in power. He further submitted that this Court should make suggestions for deletion of various amendments made in the Constitution by late General Ziaul Haq.

 

It will be advantageous to reproduce clause (1), clause (4), clause (4B) and clause (5) of Article 203C and clauses (1), (2), (5), (6) and (7) of Article 209 of the Constitution, which read as follows: ‑‑

 

Clauses (1). (4) (4B) and (5) of Article 203C of the Constitution:

 

“203C.‑‑(I) There shall be constituted for the purposes of this Chapter a Court to be called the Federal Shariat Court.

 

(4) The Chief Justice and a Judge shall hold office for a period not exceeding three years, but may be appointed for such further term or terms as the President may determine:

 

Provided that a Judge of a High Court shall not be appointed to be a Judge for a period exceeding two years except with his consent and, except where the Judge is himself the Chief Justice, after consultation by the President with the Chief Justice of the High Court.”

 

(4B). The President may, at any time, by order in writing,‑‑

 

(a)   modify the term of appointment of a Judge

 

(b)   assign to a Judge any other office; and

 

(c)   require a Judge to perform such other functions as the President may deem fit;

 

and pass such other order as he may consider appropriate.

 

Explanation. ‑‑‑In this clause and clause (4C), Judge’ includes Chief Justice,

 

(5) A Judge of a High Court who does not accept appointment as a Judge shall be deemed to have retire from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.”

 

Clauses (1), (2),15). (6) and (7) of Article 209 of the Constitution:

 

“209.‑‑(1) There shall be a Supreme Judicial Council of Pakistan, it this Chapter referred to as the Council.

 

(2)    The Council shall consist of

 

(a)     the Chief Justice of Pakistan;

 

(b)   the two next most senior Judges of the Supreme Court; and

 

(c)    the two most senior Chief Justices of High Courts.

 

(5) If,. on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court‑‑

 

(a)   may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

 

(b)   may have been guilty of misconduct, the President shall direct the Council to inquire into the matter.

 

(6)   If, after inquiring into the matter, the Council reports to the President that it is of the opinion‑‑

 

(a)   that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and

 

(b)  that he should be removed from office, the President may remove the Judge from office.

 

(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

A perusal of the abovequoted clause (4) of Article 203C of the Constitution indicates that the President has been empowered to appoint a Judge of a High Court for a period not exceeding two years without his consent but for a period more than two years with his consent after consultation with the Chief Justice of the High Court (Except where the Judge himself is the Chief Justice)!

 

 It may further be noticed that under clause (413), the President may at any time modify the terms of appointment of a Judge, assign to a Judge any other office and require a Judge to perform such other functions as he may deem fit or to pass such other order at he may consider appropriate.

 

It may also be noticed that clause (5) envisages that if a Judge of a High Court, which includes the Chief Justice, does not accept appointment as a Judge of the Federal Shariat Court, he shall stand retired from the office.

 

It may be noticed that clause (1) of Article 209 envisages the constitution of a Judicial Council of Pakistan, whereas above clause (2) thereof gives the composition of the above Council. It may further be noticed that clause (5) deals with the procedure of initiation of the proceedings against a Judge of a High Court or of the Supreme Court on the ground of being incapable of properly performing the duties of his office by reason of physical or mental incapacity or because he has been guilty of misconduct.

 

It may further be stated that clause (6) of the above Article relates to the formation of opinion by the Council for recommending the removal of the Judges on any one of the above two grounds. The President has been empowered to pass the removal order upon receipt of such opinion.

 

Whereas, clause (7) thereof guarantees the tenure of a Judge of Supreme Court and of a High Court by providing that a Judge of the Supreme Court or a High Court shall not be removed from office except by this Article.

 

The Federal Shariat Court is a new Court created by the Martial Law regime. it does not fit in the hierarchy of the Courts originally provided under the Constitution. it may be pointed out that Article 203GG lays down that subject to Articles 203D and 203F, any decision of the Court in exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court, meaning thereby, that the Federal Shariat Court is not equated with a High Court. The appointment of a permanent sitting Chief Justice of a High Court or a sitting permanent Judge thereof is in fact a fresh appointment in a different Court. Factually, it cannot be treated as a transfer from one High Court to another High Court or a Court equivalent to it. The above fresh appointment in fact impliedly involves removal from office of a Chief Justice or a Judge of a High Court, as the case may be, for the period for which he is appointed in the Federal Shariat Court. It may further be observed, that once a sitting Chief Justice of a High Court or a permanent Judge thereof is appointed in the Federal Shariat Court without his consent, he becomes susceptible under clause (4B) of Article 203C to actions detrimental to his security of tenure which is guaranteed by the above Article 209(7) of the constitution, inasmuch as the President may at any time by an order in writing modify the terms of appointment of such a Judge or he may assign to such Judges any other office, i.e. any office other than of a Judge or require him to perform such other functions as the President may deem fit, which may not necessarily be judicial functions. In the past, Mr. Justice Aftab Hussain, who was the Chief Justice of Federal Shariat Court, was made an Officer on Special Duty in a Ministry. He declined and took retirement.

 

A Chief Justice of the High Court, who may be senior to the Chief Justice of the Federal Shariat Court, after appointment in the Federal Shariat , Court,, becomes the junior most Judge, For example, Mr. Justice M. Mahboob  Ahmad was appointed as a Judge in 4978 and Mr. Justice Nasir Aslam Zahid was appointed in 1980. Mr. Justice M. Mahboob Ahmad had not joined the “‘ Federal Shariat Court, whereas Mr. Justice Nasir Aslam Zahid joined the same, with the result that he became junior to all the Judges of the Federal Shariat Court at the time when he joined including the Chief Justice; though all of them were junior to him on the basis of dates of their respective induction, in the High Court. This also adversely affects the terms of a Judge.

 

Since there is a conflict between the above two Articles, efforts are to be made to resolve the same by reconciling it. The Constitution is to be read as a whole as an organic document. A close scrutiny of the various provisions of the Constitution highlights that it envisages that the independence of judiciary should be secured as provided by the founder fathers of the country by passing Objectives Resolution and by providing security of tenure. The Constitution also envisages separation of judiciary from the executive. Keeping in view the various provisions of the Constitution, it is not possible to reconcile the above provisions of Article 203C and Article 209. In such a situation, the question arises, which of the Article should prevail. One view can be that since Article 203C was incorporated subsequent to Article 209, the former should prevail. The other view can be that since Article 209 was incorporated by consensus by the framers of the Constitution and whereas Article 203C was incorporated by the then Chief Martial Law Administrator and as the same is detrimental to the basic concept of independence of judiciary and the separation of judiciary, the former should prevail. I am inclined to prefer the latter interpretation as it will be more in consonance with the various provisions of the Constitution and in accord with justice and fairplay. A person cannot be appointed on adverse terms in a new Court without his consent.

 

The effect of the above view, which I am inclined to take, would be that any appointment of a sitting Chief Justice of a High Court or a permanent IM, Judge thereof without obtaining his consent, would be violative of Article 209 of IM the Constitution and, therefore, would be void. I may also observe that even Mr. Yahya Bakhtiar, learned counsel for the Federation, has candidly submitted 1M besides Mr. Fakhruddin G. Ebrahim, learned counsel appearing as amicus’ curiae, that the Federal Shariat Court was used as a during ground for Judges who were not wanted by the Government in power. Even if it is to be treated as a transfer, which is in fact not, a Judge cannot be transferred as a punishment but for the public interest.  

 

61. This leads me to the last question, namely, as to whether the President has the absolute discretion to transfer a High Court Judge to another High Court without his consent up to a period of two years or is he be guided by some principles. In this regard, reference may be made to clause (1) of Article 200 of the Constitution, which reads as under

 

“200.7(1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts:

 

Provided that, such consent, or consultation wit h the Chief Justices of the High Courts, shall not be necessary if such transfer is for a period not exceeding two years at a time.

 

Explanation.‑‑In this Article, ‘Judge’ does not include a Chief Justice but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196. “

 

A perusal of the abovequoted clause shows that the President has been empowered to transfer a Judge of a High Court from one High Court to another High Court with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both the High Courts. The proviso, which was added by Fifth Amendment with effect from 1391976, originally provided that such consent or consultation with the Chief Justices of the High Courts shall not be necessary if such transfer is for a period not exceeding one year at a time. However, the above period of one year in the proviso was substituted by two years by President Order No.14 of 1985 by the Chief Martial Law Administrator/President.

 

The Explanation to the above clause (1) indicates that the term “Judge” used in the aforesaid Article does not include a Chief Justice but includes a Judge for the time being acting as Chief Justice’ of a High Court. This Explanation was added by President Order No.24 of 1985.

 

It is clear from the above amended form of above clause that, in any case, the consultation of the Chief Justices is required even if the transfer is for less than two years and secondly, a permanent Chief Justice cannot be transferred under the above provisions of the Constitution. The above consultation as I have already held while construing inter alia Articles 177 and 193, should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint or arbitrariness or unfair play. In this behalf, it may be pertinent to refer the two Indian Supreme Court cases on the subject.

 

(i)    Union of India, Appellant v. Sankalchand Himatlal Sheth and another, Respondent (AIR 1977 SC 2328);

 

in which the Indian supreme Court, while construing Article 222(l) of the Indian Constitution relating to the transfer of Judges, held that the paramount consideration while making a transfer order after consulting the Chief Justice is the public interest and that the transfer of a High Court Judge is made in a given case for an extraneous consideration, the exercise of the power can appropriately be struck down as being vitiated by legally mala fide. It was further held that the above extraordinary power cannot be exercised by the President in a manner which is calculated to defeat or destroy in one stroke the object and purpose of the various provisions concerned with such care to insulate the judiciary from the influence and pressure of the Executive. It may be advantageous to reproduce para.43 from the opinion of Y. V. Chandrachud, J., which reads as follows:‑‑

 

“43. Article 222(l) postulates fairplay and contains builtin safeguards in the interests of reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under an obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice. Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the Judge who is proposed to be transferred, that he shall consider every relevant fact before lie tenders his opinion to the President. In the discharge of this Constitutional obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elect and ascertain further facts either directly from the Judges concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is the function and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness or unfair play, if the due procedure is followed. I must add that Mr. Seervai did not argue that the order of transfer is bad for noncompliance with the principles of natural justice.

 

The majority of the Judges were of the view that since the word consent” did not figure in Article 222(l) of the Indian Constitution, the consent of the Judges involved is not required. Whereas Bhagwati, J., with whom N.L. Untwalia, J. agreed, was of the view that the word “transfer”, which is used in clause (1) of Article 222, is a neutral word, which can mean consensual as well 8 compulsory transfer and that keeping in view the noble purposes of the Constitution to secure the independence of the superior judiciary by insulating it from all forms of executive control or influence, the word “transfer” must be read in the limited sense of consensual transfer.

 

62. This question was again considered in S.P. Gupta’s case (supra). The above majority view was reiterated.

 

63.. Mr. Sharifuddin Pirzada has furnished the relevant portions from the book “Constitutional Law of India” by H. M. Seervai, Third Edition, Vol.2, relating to transfer of a High Court Judge from one High Court to another High Court in India. The author seems to be in favour of Bhagwati, J.’s views that the transfer should be consensual.

 

64. I had the occasion to touch upon the above question in a passing reference while heading the Bench of seven members in the High Court of Sindh in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (supra), in which I observed as under:‑‑

 

“It may be observed that the relevant provisions of the Constitution pertaining to transfer of a High Court Judge to another High Court and his appointment to the Federal Shariat Court are referred to and I discussed hereinbelow. However, it will suffice to observe that I am inclined to hold that a transfer of a High Court Judge to another High  Court or to the Federal Shariat Court can only be made in the public interest and not for an object alien to the said object, and  the question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.                                                            

Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing as amicus curiae, has submitted that the view taken by the High Court of Sindh in the above case was in consonance with law as to the transfer of a Judge from one High Court to another High Court.

 

65. 1 am, therefore, of the view that the above transfer power cannot be invoked by the President/Executive for any purpose other than public interest and that too the transfer order can be made after consultation of the Chief Justice IG of Pakistan in ‘ the above terms. The power of transfer cannot be pressed into service for the purpose of inflicting punishment on a Judge or for any other extraneous consideration.

 

66. Before parting with the above discussion, I may observe that Mr. Sharifuddin Pirzada has contended that the appointment of Judges in the superior Courts by the President is not an act of the nature which needs’ advice of the Prime Minister under Article 48 of the Constitution. According to him, the relevant Articles of the Constitution confer power on the President to appoint the Judges of the superior Courts after consulting the consultees mentioned in the relevant Articles, which do not include the Prime Minister. His further submission was that since the special Articles provide specifically the consultees who are to be consulted, this will negate Article 48 of the Constitution and thus the Prime Minister’s advice is not required. In support of his submission, he has referred to certain cases and other material.

 

Mr. Khairi and Mr. Raja Muhammad Akram, learned counsel for the newly added appellants Nos.3 to 7, had also submitted arguments in line with Mr. Shariftiddin Pirzada’s above arguments.

 

67. On the other hand, Mr. Qazi Muhammad Jamil, learned Attorney-­General, and Mr. Aitzaz Ahsan, learned counsel for the Federation, have submitted that the appointment of a Judge in a superior Court is an executive act and the Executive includes the President and the Prime Minister. According to them, it is not necessary to go into the above question.

 

68. Since the interpretation of various Articles given by this Court hereinabove will be binding on the Executive, as such it is not necessary to go into the above question in this case.

 

69. These are the reasons pursuant to the short order dated 2031996, which is to be treated as part of this judgment, which reads as follows: ‑‑

 

(i) The words “after consultation” employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitnessand suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

 

(ii)    That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

 

(iii)   That the permanent vacancies accruing in the offices of Chief Justices and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

 

(iv)  That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.

 

(v)    That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

 

(vi)   An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

 

(vii) That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reason/reasons to be recorded by the President/Executive.

 

(viii)That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Articles was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.

 

(ix)  That transfer of a Judge of one High Court to another High Court car only be made in the public interest and not as a punishment..

 

That the requirement of 10 years’ practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.

 

(xi)   That the simpliciter political affiliation of a candidate for judgeship of the superior Courts may not be disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.

 

(xii) That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this Court in the case of Abrar Hasan v. Government of Pakistan and others (PLD 1976 SC 315 at 342).

 

(xiii) That since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.

 

In view of what is stated above, we direct;

 

(a)    That permanent Chief Justices should be appointed in terms of the above conclusion No.(iii) in the High Courts where there is no permanent incumbent of the office of the Chief Justice;

 

(b)   that the cases of appellant Nos.3 to 7 in Civil Appeal No.805 of 1995(i.e. Additional Judges who were dropped) shall be processed and considered for their permanent appointment by the permanent Chief  justice within one month from the date of assumption of office by him as such;

 

(c)   that appropriate action be initiated for filling in permanent vacancies of Judges in terms of above conclusion No.(iii);

 

(d) that ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should be sent back to their respective High Courts in view of above conclusion No.(iv);

 

(e) that the cases of the appointees of the Federal, Shariat Court be processed and the same be brought in lint with the above conclusion No.(viii); and

 

(f) that upon the appointment of the permanent Chief Justice in the High .Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Court Judges in terms of the above ‘ declaration No. 13 within one month from the date of this order or within one month from the date of assumption of office by a permanent incumbent, whichever is later in time and to take action for regularising the appointments/confirmation of the Judges recently appointed/confirmed inter alia of respondents Nos.7 to 28 in Civil Appeal No.805/95 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of Ad hoc/Acting Judges.

 

Resultantly, the direct petition and the appeal captioned above are allowed in the terms and to the extent indicated above.

 

70. This Court is grateful to Messrs Khairi and Raja Muhammad Akram, the learned AttorneyGeneral, Mr. Qazi Muhammad Jamil, Messrs Yahya Bakhtiar and Aitzaz Ahsan, learned counsel for the Federation, and Messrs Syed Sharifuddin Pirzada, S. M. Zafar, Fakhruddin G. Ebrahim, Muhammad Akram Sheikh and Riazul Hasan Gilani, and the counsel who assisted them for rendering valuable services to this Court in the above cases, particularly the counsel who had appeared as amicus curiae.

 

(Sd.)

AJMAL MIAN, J

(Sd.)

FAZAL ILAHI KHAN, J

(Sd.)

MANZOOR HUSSAIN SIAL,. J

I agree With the judgment of my learned brother HJ(2) but would like to add my reasons thereto.

(Sd.)

MANZOOR HUSSAIN SIAL,. J

 

 

             MANZOOR HUSSAIN SIAL, J.‑‑‑Mr. HabibulWehabulKhairi, Advocate Supreme Court, and another filed in this Court C. P. No. 11 / 1995, and prior to it, AlJehad Trust also filed through him C.P. No. 29/1994. The first petition was directed against judgment dated 491994 of the Lahore High Court, whereby Writ Petition No. 875/1979 filed by him was dismissed and the second petition was moved under Article 184(3) of the Constitution invoking original jurisdiction of this Court for the relief prayed for in the petition.

 

2. On 1871995 both these petitions were taken up together, and after hearing learned AttorneyGeneral and learned counsel for the parties, an order to the following effect was passed:‑‑‑

 

C.P. No. 11/1995,

 

(1)    Leave is granted to examine in detail whether the judgment of the High Court impugned herein is sustainable on the ground that it is consistent with correct interpretation of the Articles in the Constitution relating to Judiciary.

 

(2)   Miscellaneous application of some respondents as copetitioners will be heard at the time of final hearing,

 

(3)   M/s. S.M. Zafar and Fakhruddin G Ebrahim learned Senior Advocates of the Supreme Court are requested to assist the Court as amicus curiae.

 

Constitutional Petition No. 29/1994:

 

(1)    This petition is directly filed under Article 184(3). of the Constitution which inter alia challenges amendments of certain provisions of the Constitution and it also seeks interpretation of provisions of the Constitution relating to Judiciary.

 

(2)   We admit this petition to the extent of examining the scope and import of provisions relating to the Judiciary.

 

(3)   Both the matters to come up for hearing together on a date to be fixed by the office.

 

3. On 8101995, the application filed by respondents Nos. 29, 30, 31, 33 and 34 in C.P. No. 11/95 with a prayer to be transposed as copetitioners/correspondents, was allowed on the ground that leave to appeal had already been granted in the case and the prayer of the respondents was not opposed by the learned AttorneyGeneral for Pakistan. The necessary amendment was made in the Memorandum of Appeal and they were transposed as appellants Nos. 3 to 7 in Civil Appeal No. 805/1995. On the same day on suggestion made by Mr. Fakhruddin G. Ebrahim, Senior Advocate, Supreme Court, amicus curie, notices to the President, Supreme Court Bar Association and Presidents of all the High Courts Bar Associations in the country were issued to assist the Court. Mr. Sharifuddin Pirzada, Senior Advocate Supreme Court was also requested to assist the Court as amicus curie. Notices to all the AvocatesGcneral of all the Provinces were also issued in the matter.

 

4. The regular hearing of these cases commenced on the 5th November, 1995 and concluded on,13th March, 1996.

We heard Mr. HabibulWahabulKhairi, the appellant. Raja Muhammad Akram, learned Senior Advocate Supreme Court for appellants Nos.3 to 7. Mr. Aitzaz Ahsan Advocate, on behalf of Federation, in Civil Appeal No. 805 of 1995. Mr. Yahya Bakhtiar, learned Senior Advocate Supreme Court for Federation in the Constitutional petition, Qazi Muhammad Jamil, learned AttorneyGeneral, appeared in response to Court notice. Mr. Syed Sharifuddin Pirzada, S.M. Zafar and Fakhruddin G. Ebrahim, Sheikh Muhammad Akram, Senior Advocate, President, Supreme Court Bar Association, Dr. Riazul Hasan Gilani for Lahore High Court Bar Association, as amicus curiae.

 

5. On 2031996 this Court allowed the aforementioned appeal and the Constitutional petition in terms indicated in the brief order, which is reproduced hereunder:‑‑‑

 

(i)     The words “after consultation” employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive.

 

(ii)    That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

 

(iii)    That the permanent vacancies occurring in the office of Chief Justices and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

 

(iv)  That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.

 

(v)    That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive he is entitled to be appointed as such in the Court concerned.

 

 (vi)  An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.

 

(vii) That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reason/reasons to be recorded by the President/Executive.

 

(viii)That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.

 

(ix)  That transfer of a Judge of one High Court to another High Court can only be made in the public interest and not as a punishment.

 

(x)   That the requirement of 10 years’ practice under Article 1932 (a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.

 

(xi)   That the simpliciter political affiliation of a candidate for judgeship of the superior Courts may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned the Chief Justice of Pakistan.

 

(xii) That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this Court in the case of Abrar Hasan v. Government of Pakistan and others (PLD 1976 SC 315 at 342).

 

(xiii)That since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment confirmation made without consulting any of the consultees as interpreted above would be violative of the constitution and, therefore  would be invalid.

 

In view of what is stated above, we direct:

 

(a) That permanent Chief Justices should be appointed in terms of the above conclusion No. (iii) in the High Courts where there is no permanent incumbent of the office of the Chief Justice;

 

(b) that the cases of appellants Nos. 3 to 7 in Civil Appeal No. 805 of 1995 (i.e. Additional Judges who were dropped) shall be processed and considered for their permanent appointment by the Justice within one month from the date permanent Chief of assumption of office by him as such;

 

(c)    that appropriate action be initiated for filling in permanent vacancies of Judges in terms of above conclusion No. (iii);

 

(d)    that ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should be sent back to their respective High Courts in view of above conclusion No. (iv);

 

(e)    that the cases of the appointees of the Federal Shariat Court be processed and the same be brought in line with the above conclusion No. (viii); and

 

(f) that upon the appointment Of the Permanent Chief Justices in the High Courts where there is no permanent incumbent or where there are Permanent incumbents already, they shall process the cases of the High Courts’ Judges in terms Of the above declaration No. 13 within one Month from the date of this order or within one month assumption of Office by a Permanent incumbent, whichever is later in time and to take action for regularising the appointments/confirmation of the Judges recently appointed/confirmed inter alia of respondents NOS 7 to 28 in Civil Appeal No. 805/1995 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action or recalling permanent Judges of the Supreme Court ,from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not pf appointment in the Supreme Court of ad hoc/Acting Judges.

 

6. In support of the abovequoted short order, my learned brother Ajmal Mian, J. has authored an elaborate judgment, with which I agree. He has not only set out the Constitutional history forming the background of the various issues involved in these cases, but also addressed all the contentions raised by’ the learned counsel, who appeared in these cases and felicitiously answered the questions raised. I therefore, need not advert the adding some further reasons for the order with which I am in full agreement.

 

7. Before dealing with the relevant provisions of the Constitution relating to the Judiciary, I may point out that of late, the intention of the Legislature framing the provisions of the Constitution relating to Judiciary had either been misunderstood or intentionally applied incorrectly, with the result that it had adversely affected the confidence of the public in general in the Judiciary. Following are the glaring instances where the intent of the provisions relating appointment and transfer of Judges was defeated. The Government in power I always entertained the desire and attempted to pack the Courts with Judges their choice. The ad hoc Judges in the Supreme Court were inducted against permanent vacancies, whose appointments were revocable at any time. I appointment of Acting Chief Justice in the Supreme Court and High Court indefinite period; the transfer of Chief Justices and Judges of the High Courts Federal Shariat Court entailing in the event of their refusal to accept such Order of appointment in the Federal Shariat Court, the penalty of retirement from the offices in the High Court. Some of the Additional Judges of the High Court who had completed the tenure of their appointments were dropped and appointed as permanent Judges for undisclosed reasons. At this juncture, I n point out that the principles and provisions set out in the Objectives Resolution now form substantive part of the Constitution, wherein it is categorically provided that independence of Judiciary shall be “fully secure as also Article 2 of the Constitution mandates that all existing laws are required to be brought conformity with the Injunctions of Islam as laid down in the Holy Qu’ran Sunnah. The Constitution contemplates trichotomy of power inter se the pillars of the State, namely, Legislature, Executive and the Judiciary, each of the organs of the State has to function within the limits provided in Constitution. The Constitutional provisions relating to the appointments transfers of Judges of the superior Courts, therefore, need to be examined in light of the Islamic concept of justice. Islam had always attached unparalleled importance to the concept of justice. The persons, who administered justice, had been men of deep insight, Godfearing, honest and men of integrity. In t regard, the relevant portion of famous letter of Hazrat Ali “Karam Allah Wajho”, addressed to Ashter Malik, the Governor of Egypt throws a flood of light on this subject and is reproduced hereunder:‑‑‑

 

“So far as dispensing of justice is concerned, you have to be very careful in selecting officers for the same. You must select people excellent character, superior calibre and meritorious record. They must possess following qualifications. Abundance of litigations complexity of cases should not make them lose their temper. While they realise that they have committed a mistake in judgment they should persist in it and should not try to justify it. When truth is made clear to them or when right path opens up before them, they should not consider it below their dignity to correct the mistake made or to undo the wrong done. They should not be corrupt, covetous or greedy. They should be satisfied with ordinary enquiry or scrutiny of a case but scrupulously go through all the pros and cons, must examine every aspect of the problem carefully, and whenever and wherever they find doubtful and ambiguous points they must stop, go through ‘further details, clear the points and only then proceed with their decisions. They must attach greatest importance to reasonings, arguments and proofs. They should not get tired with lengthy discussions and arguments. They must exhibit patience and perseverance in scanning the details, in testing the points presented as true and in sifting facts from fiction and when the truth presented itself to them they must pass their judgments without fear, favour or prejudice. They should not develop vanity and conceit when compliments and praises are showered upon them. And they should not be misled by flattery and cajolery.

 

Pay them handsomely so that their needs are fully satisfied and they are not required to beg or borrow or resort to corruption. Give them such a prestige and position in your State that some of your courtiers or officers cannot over lord them or bring harm to them. Let Judiciary be above every kind of executive pressure or influence, above fear or favour, intrigue or corruption. “

 

In the light of the Islamic background where Judiciary had been highly respected and the verdict of the Qadis enjoyed great esteem, coupled with the role assigned to it in the framework of our Constitution, particularly after the introduction of Objectives Resolution a substantive constituent of the Constitution, it may be said that the Judiciary now occupies unique position and has to play a decisive role in ensuring that none of the functionaries of the Government act in violation of the provisions of the Constitution or the law. The nature of the role, that the Judiciary has to play, demands that it should be independent. The independence of Judiciary is deeply connected with the Constitutional process of the appointment and transfer of Judges of the superior Courts. It is, therefore, imperative that the Constitutional provisions relating to Judiciary are interpreted in a manner, so as to secure the complete independence of Judiciary. The approach to interpret the provisions should be progressive, dynamic and meeting the everchanging requirements of the society.

 

8. Now I take up our conclusions Nos.(i) and (ii) in the short order, which are interlinked and wherein nutshell it is held that the words “after consultation” occurring in Articles 177 and 193 of the Constitution, connote that the consultation, should be effective, meaningful, purposive, consensusoriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of High Court regarding fitness and suitability of the candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the appointing authority, and if the President/Executive appoints a candidate found to be* unfit by the Chief Justice of Pakistan and Chief Justice of High Court concerned, it will not be a proper exercise of power under the relevant Articles of the Constitution.

 

The words “after consultation” mentioned in Articles 177 and 193 o the Constitution envisage participatory consultative process between consulteed and the appointing authority. The Chief Justice of Pakistan, as also the Chie Justice of High Court concerned have the best expert knowledge about the suitability of a person to be appointed as Judge of the High Court. The other consultee, namely, the Governor of the Province may provide adequate information about character of the candidate. All the consultees contemplated in the above mentioned provisions of the Constitution have vital role to play in the matter. The opinion of the Chief Justice of Pakistan, however, would deserve significant importance to select best persons for securing the independence o Judiciary. The opinion of the Chief Justice of High Court and the Chief Justice of Pakistan having direct knowledge, about the suitability of the candidate ca therefore be not ignored for any extraneous reason, and in case of disagreement the appointing authority is required to record sound reasons which will be justiciable. It, therefore, follows that if a person is declared unfit by the Chie Justice of the High Court, as also the Chief Justice of Pakistan, for appointment as Judge, he cannot be validly appointed, and if appointed it will not be a proper exercise of the jurisdiction vested in the appointing authority.

 

The perusal of Article 193 of the Constitution shows that that the appointment of a Judge of High Court is made by the President after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court (except where the appointment is that of a Chief Justice. The President has to consult three persons when making appointment of a Judge. The appointment of a Judge is a Constitutional appointment and a mode thereof is provided in the Constitution itself. The consultation required by the President from the consultees cannot be deemed to be a formality. Learned counsel for the parties, as also the learned counsel who assisted the Court a amicus curiae were unanimous in submitting that the consultory process envisaged in the abovenoted provision is mandatory and valid appointment of Judge or his confirmation cannot be made without resorting to consultory process. The Chief Justice of the High Court and the Chief Justice of Pakistan in give a positive opinion about the suitability of a candidate, but the Governor of the basis of information received about his antecedents gives negative opinion the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that candidate cannot be appointed and in this way the opinion of the Chief Justice cannot be ignored and due weight is to be given to his opinion The extended meaning given to the word ‘consultation’ is mainly for the reason that it secures the independence of Judiciary. The due deference in to be attached to the opinion of the Chief Justice of Pakistan and the Chief Justice of the High Court due to their exalted position as envisaged it Islam, so that the appointment of the Judges are made in a transparent manner on the basis of the merits alone. In Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 this Court while dealing with the subject of independence of Judiciary held‑‑‑

 

“that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law Without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and  the Judiciary is independent of the Executive and Legislature, and has Jurisdiction, directly or by way. of review, over all issues of a  nature.”

 

This object can only be achieved if Judges of integrity having sound knowledge in laware appointed on the basis of the expert opinion given by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. The word consultation” used in the relevant Article of the Constitution relating to Judiciary must be read in its context and being a mandatory requirement has to be effective, meaningful, purposive and consensusoriented, to have best persons appointed as Judiciary.

 

Article 177 of the Constitution deals with the appointment of the Chief Justice of Pakistan, whereas Article 180 relates to the appointment of the Acting chief Justice of Pakistan. ‘Me question, as to whether the most senior Judge of the Supreme Court is entitled to be considered for appointment as Chief Justice of ‘Pakistan against permanent vacancy is not being decided because cases involving’ the same subjectmatter are already sub judice before the Courts, and the petitioner himself did not press the prayer to that extent vide. Civil Miscellaneous Application No.541F of 1996. Another reason for not interpreting these provisions. is that proper assistance was not rendered by learned counsel for the parties in this regard.

 

The permanent vacancies occurring in the offices of Chief Justice and Judges of the superior Courts are required to be filled in immediately not later than 30 days, but if the vacancy occurs before the due date on account of death or for any other reason, that should be filled in within 90 days on permanent basis. The Constitutional offices like that of Chief Justice or the Judges should not remain vacant for indefinite period, which may tend to impair the independence of Judiciary.. Under Article 41(5) of the Constitution, the vacancy, of an office of the President is filled in by election not later than 30 days from the occurrence of the vacancy. The date of retirement of the Judges is known to the, Federal Government, since the day they are appointed. The process of appointment of their successors, therefore, can be commenced in advance, so that the successorsjudges are appointed immediately after the vacancies occur. In case of a vacancy arising suddenly on account of death or for any other reason the appointment of the successor Judge can be made within reasonable, time. The period of 30 days to fill in the vacancy of Constitutional office of a Judge has been laid down by adopting the criterion given in the provision of Article 41(5) of the Constitution which prescribes the period for filling in the vacancy of another Constitutional office. The law is that where the Constitution provides a criterion for doing a thing in one provision then that criterion can be utilised for doing another thing of similar nature provided in the Constitution. (See Maqsood v. Ali Muhammad and another 1971 SCMR 657). Here it was laid down that where a Statute itself lays down certain principles ‘for do’ ‘ some acts, they may be taken as a guideline for doing something of the same nature.

 

The period of 90 days to fill in the vacancy having occurred suddenly on account of death or for any other reason is considered a reasonable period because it is important to fill in the vacancies of the Constitutional offices of Y Judges speedily and by doing so the concept of independence of Judiciary will be strengthened.

 

Article 181 of the constitution relates to the appointment of Acting Judges. When office of a Judge of the Supreme Court is vacant or he is absent and is unable to perform the functions of his office due to any other reason the President may in the manner provided in clause (1) of Article 177 appoint a Judge of the High Court qualified for appointment as Judge of the Supreme Court to act temporarily as Judge of the Supreme Court. A retired Judge of the High Court is also eligible to be appointed as Judge of the Supreme Court and the appointment of Acting Judge of the Supreme Court shall continue until it is revoked by the President. This provision is not correctly applied or has been misused inasmuch as that since the appointment of the Acting Judge of the Supreme Court is revocable by the President at any time, the threat that his appointment can be revoked at any time keeps on constantly hanging over him for the entire period he continues in office, which undermines his independence. The independence of the Judiciary is also thereby undermined, which however is necessary to be fully secured.

 

Article 182 of ‘ Constitution relates to the appointment of ad hoc the Judges in the Supreme Court. If at any time it is not possible for want of quorum of the Judges of the Supreme Court to hold or continue the sittings of the Court or for any other reason it is necessary to increase temporarily the number of he Judges of the Supreme Court, the Chief Justice of Pakistan may in writing, with the approval of the President request any person who has held the office of a Judge of the Supreme Court and three years have not elapsed since he ceased to hold that office or a Judge of the High Court qualified for appointment as Judge of the Supreme Court with the approval of die President and with the consent of the Chief Justice of the High Court, may be asked to attend the sittings of the Supreme Court as ad hoc Judge for such period as may be necessary in the circumstances and while so sitting he shall have the same power and jurisdiction as Judge of the Supreme Court. The bare reading of the provision of this Article indicates that an ad hoc Judge in the Supreme Court cannot be appointed against existing permanent vacancy. indeed there was unanimity of learned counsel for the parties and amicus curiae that ad hoc Judge in the supreme Court cannot be appointed against the permanent vacancy and is appointed only` when it has become imperative to increase temporarily the existing strength of the Judges of the Supreme Court. The practice of appointing ad hoc Judges against permanent vacancies is therefore in contravention of the provision of Article 182 of the Constitution. Even otherwise the appointment of ad hoc Judges in the Supreme Court is for a specific purpose, namely, where at any time it is not possible for want of quorum of the Judges of the Supreme Court to hold or continue the sitting of the Court or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, this provision can be availed of. The language of the provision clearly indicates that an ad hoc Judge is appointed temporarily to cater for a particular or special situation and not as a substitute for filling a permanent vacancy.

 

Article 193 of the Constitution empowers the President of Pakistan to appoint the Chief Justice of the High Court. Apparently there is no Constitutional requirement to appoint senior most Judge as Chief Justice of the High Court whenever permanent vacancy occurs in the High Court, but to I secure the independence of Judiciary from the Executive, it is necessary to advert to the Constitutional convention which has developed by the continuous usage and practice over a long period of time. The Constitutional convention to appoint most Senior Judge of the High Court as a Chief Justice, had been consistently followed in the High Courts since before partition of the subcontinent. The senior most Judge has an edge over rest of the Judges of the High Court on the basis of his seniority and entertains a legitimate expectancy to be considered for appointment as Chief Justice against permanent vacancy of the office of the Chief Justice. Apparently there is wisdom in following the Constitutional convention of appointing most senior Judge of the High Court as permanent Chief Justice otherwise a junior most Judge in the High Court may aspire to become Chief Justice of the High Court by bypassing his seniors and to achieve this object resort to undesirable conduct by going out of his way to oblige the Government in power. If he succeeds in securing his appointment as Chief Justice by superseding his seniors, by resorting to such measures he will endanger the independence of Judiciary and destroy the public confidence in the Judiciary. If a departure to follow the established convention of appointing the senior most Judge is to be made, the appointing authority should, record reasons for not appointing most senior Judge as Chief Justice of the High Court. The complexion of the Institution is likely to be impaired by so doing.

 

The next important question for consideration is whether the Acting Chief Justice is not a consultee within the meaning of Articles of the Constitution. The mandatory Constitutional requirement of consultation is not fulfilled by consulting the Acting Chief Justice. The concept of appointment of the Acting Chief Justice is that it is for a stopgap arrangement only for a short period when the office of the Chief Justice is vacant or the Chief Justice of High Court is absent, or is unable to perform the functions of his office due to any other reason. The President shall appoint one of the other Judges of the High Court to act as Chief Justice or may request one of the Judges of the Supreme Court to act as Chief Justice.                                                                                                    

Article 496 is different in its import than Article 193, which relates to appointment of permanent Chief Justice of the High Court. The concept of Acting Chief Justice was initially introduced in India during prepartition days, but had always meant appointment of an Acting Chief Justice as stopgap arrangement. He is not supposed to take decisions relating to important policy matters without consulting the permanent Chief Justice. This provision of the Constitution was unfortunately misused during the Martial Law regime, where contrary to the intention of the framers of the Constitution the Acting Chief Justices were allowed to continue as such for long periods apparently to keep the Judiciary under the control of Executive, which militated against the independence of Judiciary. The definition of Chief Justice as contained in Article 260 of the Constitution includes the Judge for the time being acting as Chief Justice of the Court. The words “time being” clearly indicate that the Acting Chief Justice has only been appointed to meet the emergency and for a brief period. Reference to the definition word “include” from Aiyer’s Judicial Dictionary, 10th Edition, indicates that it signifies something which does not belong to specie. Indeed the Constitution recognises this distinction. Thus in Article 209 for the purpose of determining the inter se seniority of Chief Justices of the High Courts the dates of their appointment as Acting Chief Justices have to be ignored. Again in Article 200 which deals with the transfer of High Court Judges, while a Judge who is for the time being acting as Chief Justice of a High Court, is deemed to be only a Judge of the High Court; the Chief Justice is not so included. This clearly demonstrates that an Acting Chief Justice of the High Court is treated as a specie different from the permanent Chief Justice. Both Mr. Fakhruddin G. Ebrahim and S.M. Zafar stated that Acting Chief Justice is ‘ not consultee” within the meaning of two relevant Articles of the Constitution. He is supposed to deal with only routine matters, and himself being holder of an office for a brief period cannot give opinion for the permanent appointment of Judges of the superior Courts, nor to deal with long term policy matters. A concept of acting appointment can be gathered from the fact that HaZrat Umer (Razi Allah Unoho) was grievously injured by a Jew. He fixed only three days’ period for electing his successor by a panel of 6 Sohabis to fill in the vacancy of important public office. The nominee was only required to lead prayers in place of Caliph for three days, but was not authorised to carry out any other State functions. QuaideAzam in his speech made in 1931, in the Federal Structure SubCommittee Ro d Table Conference had expressed his general agreement with Sir Tej Bahalur Sapru, on the point that the practice of appointing Additional Judges was not desirable. Similarly, Mr. Chundrigar, Law ‘Minister, made a speech regarding Judiciary in the *Pakistan Constituent Assembly and wherein he emphasised the independence of the Judiciary, impartiality of Judges, to be preserved and interpretation of the Constitution by the Supreme Court to be final. The Acting Chief Justice, therefore, cannot be ii, proper consultee within the meaning of the relevant provisions of the Constitution for appointment of the Judges, as this militates against the concept of providing for an independent Judiciary. Resultantly, the mandatory, Constitutional requirement of consultation is not fulfilled for F, appointment/confirmation of the Judges by consulting the Acting Chief Justice. F The interpretation of Article 196 of the Constitution that Acting Chief Justice is F not a consultee within the ambit of the relevant provision of the Constitutional advances the spirit of the Constitution qua fully securing the independence of Judiciary and suppresses the mischief of having the appointments of lasting nature manoeuvred through him.

 

Article 196 of the Constitution also provides that the President of Pakistan may request one of the Judges of the Supreme Court to act as Chief Justice. It has been noticed that this Constitutional provision has also been misapplied as the Judges of the Supreme Court were appointed as Acting Chief Justices for indefinite periods against the spirit of the Constitution. It shakes the confidence of Judiciary and tends to show lack of confidence in the serving Judges of the High Court. In Abrar Hussain v. Government of Pakistan and others PLD 1976 SC 315 at 342 an adverse observation was made by the Full Bench of this Court to the following effect :-

 

“Before parting with the matter I should like to observe that the appointment of the respondent, a permanent Judge of the Supreme Court, as Chief Justice of a High Court, is unprecedented. For the first time a Judge of the highest Court of the land is appointed a Judge of a High Court, which occupies a lower position in the hierarchy of Courts in Pakistan. Such appointment, even if permissible, may not always be beneficial to the interests of the Judiciary or the people at large, and should not be regarded as a healthy precedent.”

 

Besides, the fact, that the Judge of the Supreme Court when appointed as Acting Chief Justice of High Court, is not a consultee within the meaning of Article 193 of the Constitution, his appointment as such in a lower position for indefinite long period is not appreciable.

 

The question whether the principle of natural justice that none should be condemned unheard was violated in the instant case, it is pointed out that the Court was called upon to interpret the relevant provisions of the Constitution relating to Judiciary and this has been done after fully hearing all concerned, namely I the learned AttorneyGeneral of Pakistan, the learned Advocates-General of all the Provinces, Senior Counsel appointed by the Federal Government namely, Mr. Yahya Bakhtiar and Mr. Aitzaz Ahsan, besides eminent amicus curiae Syed Sharifuddin Pirzada, S.M. Zafar and Fakhruddin G. Ebrahim, Sheikh Muhammad Akram, Senior Advocate Supreme Court President, Supreme Court Bar Association, Dr. Syed Riazul Hasan Gitani for the President, Lahore High Court Bar Association.

 

As regards the next declaration to the effect that the appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203C of the Constitution without his consent is violative of Article 209 of the Constitution is concerned, it appears appropriate to reproduce there under the relevant provisions of these Articles:‑‑‑

 

“203C.‑‑(I). There shall be constituted for the purpose of this Chapter a Court to be called the Federal Shariat Court.

 

(4) The Chief Justice and a Judge shall hold office for a period not exceeding three years, but may be appointed for such further term or terms as the President may determine:

 

Provided that a Judge of a High Court shall not be appointed to be a Judge for a period exceeding two years except with his consent and (except where the Judge is himself the Chief Justice), after consultation by the President with the Chief Justice of the High Court.

 

4B. The President may, at any time, by order in writing‑‑‑

 

(a) modify the term of appointment of a Judge;.

 

(b) assign to a Judge any other office; and

 

(c) require a Judge to perform such other functions as the President may deem fit;                                                                                

and pass such other order as he may consider appropriate.

Explanation.‑‑‑In this clause and clause (4-C) “Judge” includes Chief Justice.

(5) A Judge of a High Court who does not accept appointment as a Judge shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.

 

209.‑‑‑(1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.

 

(2) The Council shall consist of‑‑‑

 

(a) the Chief Justice of Pakistan;

(b) the two next most senior Judges of the Supreme Court; and

 

(c) the two most senior Chief Justices of High Courts. (5)

 

if, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court‑‑‑

 

(a)  may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

 

(b)   may have been guilty of misconduct, the President shall direct the  Council to inquire into the matter.

(6)   If, after inquiring into the matter, the Council reports to the President that it is of the opinion‑‑

 

(a)    that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and

 

(b)   that he should be removed from office, the President may remove the  Judge from office.

 

(7) A Judge of the Supreme Court or of a High Court shall not be removed  from office except as provided by this Article.”

 

The perusal of these provisions of the Constitution makes it abundantly clear that the President is empowered to appoint a Judge of the High Court under Article 203C of the Constitution, as Judge of the Federal Shariat Court, for a period of two years without his consent, but for a period exceeding two years with his consent, after consultation with the Chief Justice of the High Court (except where the Judge himself is the Chief Justice). Similarly under clause (4b) the President may at any time by order in writing modify the terms of the appointment of the Judge, assign to him any other office, require him to perform any other function as he deems fit and to pass any other order as he may consider appropriate in the matter. Clause (5) further stipulates that if the High Court Judge does not accept appointment as Judge of the Federal Shariat Court, he shall stand retired from his office.

 

Whereas Article 209(l) contemplates constitution of a Supreme Judicial Council of Pakistan and its functions. The Supreme Judicial Council is empowered to reconituend removal of a Judge from his office for being incapable of properly performing his duties by reasons of his physical or mental incapacity or for being guilty of misconduct. Clause (7) thereof guarantees the tenure of his office and mandates that he shall not be removed from his office except as provided under that Article. Clause (8) of the Article provides that the Supreme Judicial Council shall issue Code of Conduct to be observed by the Judges of the superior Court.

 

It is significant to point out that the Federal Shariat Court was constituted by addition of Chapter 3A in the Constitution by the Chief Martial Law Administrator ‘in 1980, that is long before the introduction of the Eighth Amendment in the Constitution. This Court was established under the cover of H the Martial Law and did not fit in the scheme of the existing Courts, It cannot H possibly be equated with High Court. The appointment of a Judge or Chief H Justice of High Court, as Judge of Federal Shariat Court, is therefore not a H transfer from one High Court to another, rather operates as his removal from H office in the High Court and is fresh appointment in another Court with lack security of tenure and risk of the modification of his terms of appointment he enjoyed as Judge or Chief Justice of the High Court. It may be observed that there are several instances where Chief Justices and Senior Judges of High Courts, not liked by the Government in power, were appointed as most junior Judges of Federal Shariat Court, whootherwise by length of period served ...  High Courts were senior to all Judges of Federal Shariat Court including the Chief Justice. In one case, the Chief Justice of the Federal Shariat Court, who earned displeasure of the appointing authority, was made an Officer of Special Duty in a Ministry, which position he declined to accept and stood retired.

 

The abovementioned instances go to show that Federal Shariat Court has been used by the Government in power, as rightly said by Mr. Fakhruddin G. Ebrahim., amicus curie, a ‘dumping ground’ for the High Court Judges, and according to Mr. Yahya Bakhtiar, learned Senior Advocate, the High Court Judges were sent to Federal Shariat Court as punishment. The Chief Justices and Judges of High Courts feel reluctant to accept appointment as Judges of Federal Shariat Court, but they have no option, in case of their refusal to accept the appointment, they stand retired.

 

The closeexamination of the abovementioned two provisions of the Constitution reveals that there is irreconcilable conflict between them. The accepted principle of interpretation is that where there is conflict between the two provisions, the entire provisions of the Constitution are required to be read as a whole, and the basic features of the Constitution taken into consideration.

 

The consideration which weighed with the Court more heavily in holding that the appointment of a sitting Chief Justice or a Judge thereof in the Federal Shariat Court under Article 203C, without his consent, being violative of Article 209, was that the provision of the Constitution which corresponds more closely to and gives effect to dominant intent of the Constitution will have to be preferred in its application, to that provision, which detracts from that intent and spirit. Undoubtedly, Article 209 guarantees the tenure of office of a Judge and explicitly secures the independence of Judiciary, which is dominant intent of the Constitution, whereas Article 203C militates against the security of tenure and independence of Judiciary, therefore, must yield to the provisions of Article 209 of the Constitution. ‘The introduction of Article 203C in the Constitution by the Chief Martial Law Administrator, vas against Article 209 which was enacted by the framers of the Constitution was merely one of the considerations, to hold that Article 209, which promotes security of tenure and independence of Judiciary must prevail, in its application over Article 203C, which detracts from the intent and spirit of the Constitution namely to fully secure the independence of the Judiciary by inter alia providing full security of tenure to the Judges.

 

            The appointment of sitting Chief Justices and Judges of High Courts, as Judges of Federal Shariat Court, without their consent, therefore, being violative of the provisions of Article 209 of the Constitution will be void. I may not be misunderstood to have held that Article 203C is void. It is only the action taken thereunder viz. the appointment of Judges of High Courts in Federal Shariat Court, being, violative of Article 209 of the Constitution is declared void.

 

In this connection it is pertinent to observe that it is wellsettled principle of interpretation that the Court is empowered to harmonise conflicting provisions of the Constitution and the Statutes and if it is not possible to reconcile the inconsistent provisions, to declare which of the provision will be preferred and given effect. The Court in exercise of its inherent judicial power can even read “words” in the Constitution or Statute in order to give effect to the manifest intention of the Legislature. In Muhammad Ismail v. The State PLD 1969 SC 2 ‘ 4 this principle was duly recognized by this Court and it was observed that in order to give effect to the true intention of the lawmakers it is permissible for the Courts to read words in the Statute. It is true that generally a Court of law is not authorised to alter the language of the Statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the courts to give effect to the true and patent intention of the lawmaker by 1K supplying “omissions” in order to avoid manifest injustice. It is a misconception, e therefore, to consider that the reading of the words in the Constitution or Statute to give effect to the free intention of the lawmaker amounts to rewriting or amending the Constitution or the Statutes. On the other hand, its purpose is to give effect to its true intent.

 

In Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1990 SC 661) this I Court added the word “Judiciary” in the definition of the word “State” in Article 7 of the Constitution. Although the word ‘Judiciary’ did not form part of the definition of the word ‘State’ in the Constitution, but in the peculiar context of Article 25(3) of the Constitution it was held that the word “State” would include the judicial functions in its definition. Similarly in Hasham Khan v. State (PLD 1991 SC 367) this Court added the word  “extending” in section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) to give effect to the true and patent intention of the lawor by  supplying the said omission. The Court following the accepted principles of interpretation acts within its jurisdictional domain to give effect to a particular provision, so as to bring it in accord with the patent intention of the framers of the Constitution.                                                                       

 

Article 197 of the Constitution relates to the appointment of Additional Judges. It envisages that when the office of a Judge of the High Court is vacant, or he is absent or unable to perform his functions as such for any other reasons, or it is necessary to increase the number of Judges of the High Court, the President may appoint a person qualified for appointment as Judge of the High Court to be Additional Judge of the High Court for such period as the President may determine. In Indian Constitution, there is distinction in corresponding provision for the appointment of Additional. Judges in the High Courts. Neither in the 1956 Constitution of Pakistan nor prior to that there was any provision for appointment of the Additional Judges in the High Courts. In 1962 as well as in 1973 Constitutions a specific provision was introduced. A practice/convention has developed in Pakistan for the last about 25 years that Additional Judges are appointed against permanent vacancies and after the expiry of the period for which they were initially appointed they. are considered for permanent appointment as Judges of the High Court. Invariably, if Additional Judge of High Court performs his functions during the period for which he is appointed to the satisfaction of the Chief Justice of the High Court as also the Chief Justice of Pakistan, he is appointed as permanent Judge of the High Court. The Additional Judge, who is appointed against a permanent vacancy, or the vacancy having occurred d6ring the period he was working as Additional Judge clearly acquires a reasonable expectancy to be considered for appointment as permanent M Judge. In order to secure the independence of Judiciary if the Additional Judge is recommended by the Chief Justice of the High Court concerned and the Chie.’ Justice of Pakistan, he is normally to be appointed as a permanent fudge in the M absence of strong reasons to the contrary, which must be. recorded by the appointing authority. It is in accord with the spirit of the Constitution that the period of his initial appointment as Additional Judge can only be extended on the recommendation of the Chief Justice of the High Court concerned or Chief Justice of Pakistan and not otherwise by the appointing authority. It is pointed out that legitimate expectancy of an Additional Judge, Oho had performed his functions to the satisfaction of the Chief Justice of the High Court concerned and Chief Justice of Pakistan for the period he was initially appointed, is only with regard to his being considered for permanent appointment.

 

The eligibility of an Advocate for appointment as Judge of the High Court, as envisaged under Article 193 of the Constitution is that he has for a period of, or for periods aggregating, not less than ten years, been an Advocate of a High Court. The question arises whether the period of ten years is to be construed from the date of his enrolment alone or that he is required to put in 10 years’ practice as an Advocate. Whereas subclause (2)(b) of Article 193 prescribes a period of not less than 10 years to be a Member of a civil service prescribed by law, and has, for a period of not less than three years served as or exercised the functions of a District Judge in Pakistan, to become eligible for appointment as Judge of the High Court. It, therefore, necessarily follows that this clause has to be read with clause (a) and experience of a particular period in the profession is necessary for the ‘ Advocate to become eligible for the appointment of a Judge of High Court. The suitability of the Advocate on the basis of the experience for appointment as Judge of the High Court shall. however has to be determined by the Chief Justice of the High Court, who has to initiate the panel of the candidates for appointment as Judges of the High Court to the Chief Justice of Pakistan for ultimate recommendation for the appointment of suitable persons as Judges of the High Court. Mere enrolment of an Advocate for a period of 10 years is therefore not sufficient to make him eligible for his appointment as Judge of the High Court.

 

The question whether political affiliation of a candidate for judgeship of superior Court would disqualify him to be appointed as Judge of High Court, has been examined in depth, and it has been found that political affiliation alone may not disqualify the candidate provided he is a person of unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. After he is appointed as Judge of the High Court and takes oath to perform his functions without fear, favour or illwill and decides cases purely on merits, he would be as good a Judge as any other Judge, who had no political affiliation before assuming the office of a Judge of the High Court. It, however, appears desirable not to appoint a person who has had strong affiliations with one political party or the other, as it would be not only difficult for him to shake off that impression and rather embarrassing for him to do evenhanded justice to all manner of people.

 

Article 200 of the Constitution relates to transfer of a High Court Judge to another High Court without his consent for a period of two years. The perusal of this provision of the constitution shows that consultation of the Chief Justice is needed even if the transfer is for a period of less than 2 years, and a permanent Chief Justice cannot be transferred at all. While interpreting this provision of the Constitution in the case titled Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 at 425 my teamed brother Ajmal Mian, J as Member of that Bench (as then he was ) after discussing the relevant provisions of the Constitution pertaining to transfer of a High Court Judge to another High Court and his appointment to the Federal Shariat Court went on to add:

 

“. . . . it will suffice to observe that I am inclined to hold that a transfer of High Court Judge to another High Court or to the Federal Shariat Court can only he made in the public interest and not for an object alien to the said object  and that the Question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.” It is, therefore, clear that the President cannot transfer a Judge of a High Court to another High Court except in public interest after consultation with Chief Justice of Pakistan.

 

M.B.A./A1377/S                                                                           Orders accordingly.


P L D 2009 Supreme Court 393

 

Present: Iftikhar Muhammad Chaudlhry, C.J. Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

 

SINDH HIGH COURT BAR ASSOCIATION---Petitioner

 

Versus

 

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights, Islamabad and 4 others--Respondents

 

Constitution Petition No.9 of 2009, decided on 3rd April, 2009.

 

Constitution of Pakistan (1973)

 

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Contentions of the petitioners were that Judges of the High Court were illegally directed to cease to hold office in pursuance of the Proclamation of Emergency of 3rd November, 2007, which was it correctly validated by a 7 Member Bench of Supreme Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178 holding. inter alia, that the Judges who had not taken oath under the Provisional Constitution Order, 2007 had ceased to hold office; that said judgment was per incuriam in view of the 12 Member Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 wherein it was held in unambiguous terms that after the pronouncement of this judgment, no Judge of a Superior Court could be removed except by following the procedure laid down in Article 209 of the Constitution; that in the case of Tikka Iqbal Muhammad Khan, the judgment in tyre case of Zafar Ali Shah was not examined in the correct perspective, therefore, the judgment of the 12 Judges would prevail; that the said Judges were reappointed for a period of one year vide Notification dated 26-8-2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007 and later on vide Notification, dated 15-9-2008 the period of their appointment as Additional Judges of the High Court was extended for six months with effect from the date when their present term expired, thus, this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25-8-2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25-2-2010; that although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the Notifications dated 26-8-2008 and 15-9-2008, but on a representation made by the Judges corrected the error and assigned them Court work; that subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the Notifications dated 26-8-2008 and 15-9-2008 in a manner that their period of appointment as Additional Judges had already expired, which was not the correct interpretation of both the Notifications; that without prejudice to his plea with regard to the interpretation of the Notifications dated 26-8-2008 and 15-9-2008, the Chief Justice and the Governor of Sindh both recommended the two Additional Judges for their appointment as permanent Judges under Article 193 of the Constitution; that after recommendation of the Chief Justice and the Governor of Sindh regarding permanent appointment of the Judges, in view of the law laid down in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, they ought to have been appointed accordingly---Supreme Court ordered to issue notice to the respondents for filing of parawise comments/written statement, if desired by them, in the meanwhile, notice be also issued to the Attorney-General for Pakistan under O.XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions regarding interpretation of the constitutional provisions were involved in the case and that the parawise comments/written statement be filed within a period of three weeks and on receipt of the same, the case shall be listed for hearing. 

 

Rashid A. Razvi, Advocate Supreme Court and Anwar Marrsoor Khan, Advocate Supreme Court for Petitioner.         

 

Nemo for Respondents.

 

Date of hearing: 3rd April, 2009.

 

ORDER

 

IFTIKHAR MUHAMMAD CHAUDHARY, C.J.---This petition has been filed by the Sindh High Court Bar Association with the following prayer:--

 

“The petitioner, therefore, prays that his Hon’ble Court may be pleased:--

 

(i) To declare that the respondents No.3 and 4 are and continue to be Judges of the High Court of Sindh and would continue as Additional Judges till 25th August, 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar;

 

(ii) To declare and direct Registrar of the High Court of Sindh that the respondent should be assigned regular work as Judges of the Sindh High Court;

 

(iii) To issue writ of mandamus directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the respondents Nos. 3 and 4, further directing the continuance of respondents Nos. 3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March, 2009;

 

(iv) To issue directions to the respondent No.1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March, 2009 before this Hon’ble Court;

 

(v) To issue a writ of mandamus to appoint the respondents Nos. 3 and 4 as permanent Judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan;

 

(vi) To grant costs of the petition; and

 

(vii) To grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case.”

 

2. The learned counsel contended that respondents Nos. 3 and 4 (Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Khalwar were illegally directed to cease to hold office in pursuance of the Proclamation of Emergency of 3rd November, 2007, which was incorrectly validated by a 7 Member Bench of this Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178 holding, inter alia, that the Judges who had not taken oath under the Provisional Constitution Order, 2007 (PCO 2007) had ceased to hold office. According to the learned counsel this judgment was per incuriam in view of the 12 Member Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 wherein it was held in unambiguous terms that after the pronouncement of this judgment, no Judge of a Superior Court could be removed except by following the procedure laid down in Article 209 of the Constitution, According to him, in the case of Tikka Iqbal Muhammad Khan, the judgment in the case of Zafar Ali Shah was not examined in the correct perspective. Therefore, the judgment of the 12 Judges would prevail.

 

3. The learned counsel further contended that the respondents Nos. 3 and 4 were reappointed for a period of one year vide Notification dated 26-8-2008. which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007 He pointed out that later on vide Notification, dated 15-9-2008 the period of their appointment as Additional Judges of the High Court was extended for six months with effect from the date when their present term expired. This according to the learned counsel this period of six months would be added to the earlier period of appointment as Additional Judges which was to expire on 25-8-2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25-2-2010. He submitted that although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the Notification dated 26-8-2008 and 15-9-2008, but on a representation made by the respondents Nos. 3 and 4, corrected the error and assigned them Court work Subsequently the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the Notifications dated 26-8-2008 and 15-9-2008 in a manner that their period of appointment as Additional Judges had already expired, which according to the learned counsel, was not the correct interpretation of both the Notifications.

 

4. The learned counsel also contended that without prejudice to his plea with regard to the interpretation of the Notifications, dated 26-8-2008 and 15-9-2008, the Chief Justice and the Governor of Sindh both recommended the two Additional Judges for their appointment as permanent Judges under Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel maintained that after recommendation of the Chief Justice and the Governor of Sindh regarding permanent appointment of the respondents Nos. ‘3 and 4, in view of the law laid down in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, the respondents ought to have been appointed accordingly.

 

5. Issue notice to the respondents for filing of parawise comments/written statement, if desired by them, in the meanwhile, notice be also issued to the learned Attorney-General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions regarding interpretation of the constitutional provisions are involved in the case. Let the parawise comments/written statement be filed within a period of three weeks and on receipt of the same, the case shall be listed for hearing.

 

C.M.A. No.1032 of 2009

 

6. Notice in the miscellaneous application be also issued.

 

M.B.A./S-18/S                                                                                    Order accordingly.


P L D 2009 Karachi 408

 

Before Mushir Alam, Khilji Arif Hussain, Gulzar Ahmad, Maqbool Baqar and Faisal Arab, JJ

 

SINDH HIGH COURT BAR ASSOCATION, through Honorary Secretary---Petitioner

 

Versus

 

FEDERATION OF PAKISTAN through Ministry of Law and Justice, Islamabad and 4 others---Respondents

 

Constitutional Petition No.D-40 of 2009, decided on 25th June, 2009.

 

Per Gulzar Ahmed, J; Mushir Alam; Khilji Arif Hussain and Maqbul Baqar, JJ, agreeing---

 

(a) High Court (Lahore) Rules and Orders---

 

----Vol. I, Ch.3, Part A, R.6 & Ch.10, Part A, R.1---Sindh Chief Court Rules (AS), R.12(2)---West Pakistan Civil Courts Ordinance (II of 1962), S.28---Sindh Courts Act (VII of 1926), S.8---Constitution of Benches by Chief Justice of High Court of Sindh---Application of R.12(2), Sindh Chief Court Rules (AS)---Scope---Contention was that R.12(2) of the Sindh Chief Court Rules (AS) required one or both Judges to sit as member of the Full Bench and it being not so, the Full Bench was not properly constituted---Held, High Court (Lahore) Rules and Orders were being applied in exercise of appellate jurisdiction of Sindh High Court; Rule 12(2) of the Sindh High Court being not applicable to the High Court of Sindh and Sindh Courts Act, 1926 except its S.8, having been repealed, contention had no force and the same was rejected---Rule 6, Part A, Ch.3, Vol.V and Rule 1, Part A, Ch.10, of Vol.V of High Court (Lahore) Rules and Orders give ample power to the Chief Justice to constitute Bench including the Full Bench without any condition and that it was not necessary for the Chief Justice to sit as a member of the pull Bench constituted by him---Principles.

 

Messrs Muqtada Khan Iqtada Khan v. Mst. Allah Rakhi Begum PLD 1972 Kar. 471; The State v. Muhammad Ashraf PLD 1961 (WP) Kar. 452 and Abdul Aziz v. Abdul Wahab PLD 1964 (W.P.) Kar. 630 ref.

 

(b) Writ---

 

----Mandamus and quo warranto, writs of---Rule for issuing a writ of mandamus/enforcement of fundamental rights and for issuing writ of quo warranto is governed by two different independent sets of law in which there is no similarity and the ultimate decision of the court, in case writs are issued, produces altogether different results---In issuing of writ of mandamus/enforcement of fundamental rights, the court directs the official functionaries to do and perform what law requires them to do and to perform, and in case of issuing of writ quo warranto the person holding or purporting to hold public office ceases to hold office for it being without authority of law. 

 

(c) Constitution of Pakistan (1973)---

 

----Art. 199(1)(ii)---Constitutional jurisdiction of High Court----Scope---Article 199(1)(ii) of the Constitution confers powers on the High Court to entertain and decide a petition of quo warranto---Constitutional duty has been cast upon the High Court to decide such matter, which duty ought not be abdicated for reason that some point in the nature of mandamus/involving enforcement of fundamental rights either collaterally or directly involved in the constitutional petition before the High Court be also pending adjudication before the ‘Supreme Court, in view of the clear distinction in the matters of quo warranto and mandamus---Such would be more appropriate, for the added reason that if any party is aggrieved by the decision of the High Court, it will have remedy to having the decision of High Court examined by the Supreme Court. 

 

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

 

(d) Constitution of Pakistan (1973)---

 

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petition of quo warranto in respect of Judge of a superior Court will be maintainable under Art.199 of the Constitution.

 

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 quoted.

 

Al-Jehad Trust’s Case PLD 1996 SC 324 ref.

 

(e) Constitution of Pakistan (1973)---

 

----Arts. 177, 193, 197 & 48---Appointment of Supreme Court and High Court Judges---Object of providing consultation, inter alia, in Arts.177 & 193 of the Constitution---Principles.

 

Following are the settled principles on the subject:---

 

(I) The object of providing consultation, inter alia, in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court which was obtaining prior to independence of India and post-independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary.

 

(II) Since the Chief Justice of High Court concerned and Chief Justice Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan.

 

(III) The words “after consultation” referred to inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the Consultees and also the Executive. It should be effective, meaningful, consensus-oriented leaving no room for complaint of arbitrariness or unfair play.

 

(IV) The Chief Justice of a High Court and Chief Justice of Pakistan are well-equipped to assess as to the knowledge and suitability of a candidate of judgeship in the superior Courts whereas the Governor of a Province and the Federal. Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct.       

 

(V) None of the consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice Pakistan being Paterfamilias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely his views deserve due deference.

 

(VI) The view of none of the consultee can be rejected arbitrarily in a fanciful manner and that the views of Chief Justice of the High Court concerned and Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable.

 

(VII) That if a person found to be unfit by the Chief Justice of a High Court and Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court he cannot be appointed as it will not be proper exercise of power to appoint under the Articles of the Constitution.

 

(VIII) That since the interpretation of the various Articles by the Supreme Court becomes part of the Constitution and as it becomes the law, it is incumbent on all Executive and judicial authorities throughout Pakistan to act in the aid of the Supreme Court by virtue of Article 190. An advice under clause (1) of Article 48 of the Constitution, therefore, cannot be in violation of law as declared by the Supreme Court. If the advice tendered by the Prime Minister in respect of appointment of the Judge of a superior Court is in accordance with the judgment in the Judges’ case, it will be binding on the President. But if the advice is contrary to the said judgment the President has several options which inter alia, include the following:---

 

(i) The President may agree with the reasons recorded by the Prime Minister for not accepting the recommendations of the Chief Justice or the Chief Justices. In that event the above reasons will be justiciable as held in the Judges’ case.

 

(ii) The President may refer the matter to the Prime Minister for reconsideration under the proviso of clause (1) of Article 48 of the Constitution.

 

(iii) The President may refer the matter for consideration of the Cabinet under clause (c) of the Article 46 of the Constitution.

 

(iv) The President may convene a meeting and may invite the Prime Minister, the Chief Justice of Pakistan and Chief Justice of High Court concerned for resolving the issue by participatory consultative process and consensus-oriented.

 

(v) The President may make a reference to the Supreme Court under Article 186 for soliciting opinion. 

 

The Executive Authority is bound to accept the views of Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of Judges in superior judiciary and such views cannot be rejected arbitrarily for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable and that if a person is found to be unfit by the Chief Justice of a High Court concerned and Chief Justice of Pakistan for appointment as a Judge of a High Court, he cannot be appointed as it will not be a proper exercise of power to appoint under Articles of the Constitution. The assumption is that the views of the Chief Justice of a High Court and Chief Justice of Pakistan are identical and does not speak of a case in specific terms where the views of Chief Justice of High Court concerned and Chief Justice of Pakistan may not be the same. The judgment proceeds on the assumption that there will be identity of views of Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of a Judge or Additional Judge of High Court concerned and Chief Justice of Pakistan being Members representing judiciary have their channels of discussion/consultation open between them and if there does crop-up difference of opinion between them, they are completely free to have their views discussed with each other to reach consensus between them.

 

The differences in views between Chief Justice of High Court and Chief Justice of Pakistan in the matter of appointment of a Judge or an Additional Judge in the High Court have been arising but there appears to be no one case where it may not have been resolved through the process of consultation between them. No such situation- could have been visualized nor comprehended for the reason that Chief Justice of High Court and Chief Justice of Pakistan being head of their respective Courts are always expected to resolve their differences by an amicable means so as to forward to the Executive a consensus view from the side of judiciary regarding appointment of a Judge or an Additional Judge of a High Court. 

 

Supreme Court on Record Advocate Association v. Union of India AIR 1994 SC 268; Philosophy of Law, 2nd Edn. By Joel Feinberg and Hyman Gross; Al-Jehad Trust v. Federation of Pakistan PLD ‘1996 SC 324; Justice Ghulam Haider Lakho v. Federation of Pakistan PLD 2000 SC 179; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; M.M. Gupta and another v. State of J&K and others AIR 1982 SC 149 and Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan others PLD 1997 SC 84 ref.

 

(f) Constitution of Pakistan (1973)---

 

----Arts.177, 193, 197 & 260---Appointment of Supreme Court and High Court Judges---”Consultation”---Meaning.

 

The definition of the word “consultation” given in the Constitution is: shall, save in respect of appointment of Judges of the Supreme Court and High Courts, means, discussion and deliberation which shall not be binding on the President. This definition in the first place provides consultation by means of discussion and deliberation in the case of appointment of Judges in the Supreme Court and High Courts and secondly provides saving clause which as a rule is construed to exempt something from immediate interference or destruction. 

 

The word “consultation” as defined in the Constitution with meaning of discussion and deliberation, as an exception has been made binding on the President only in respect of appointment of Judges of Supreme Court and High Courts and it seems to be based on the rationale not far to be found i.e. pronouncement of Supreme Court in the Judges’ case. 

 

Understanding Statutes Conons of Construction, 2nd Edn., p.114 by S. M. Zafar and Judge’s case PLD 1996 SC 324 ref.

 

(g) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment of Judges of High Court---Consultative process---Principles---By not adhering to the recommendations of the Chief Justice of concerned High Court and by not giving any reasons for such non-adherence and without consulting the Chief Justice of the High Court, appointing a permanent Judge of said High Court and granting 6 months extension as Additional Judge through a notification was not based upon mandatory consultation as required by the Constitution read with Judge’s case PLD 1996 SC 324 which provided that there should be participatory consultative process’ between the consultees and also with the Executive and it should be effective, meaningful, purposive, consensus oriented leaving no room for complaint of arbitrariness or unfair play and that the views of each of the consultees was binding on the Executive and in case Executive wishes to disagree with view of any of the consultees, it was required to give strong reasons for it---Views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan Will be binding on the Executive---Views of judicial consultees in respect of appointment of a Judge of High Court has to be expressed by the Chief Justice of Pakistan with the supporting views of the Chief Justice of High Court concerned which has to be evolved through participatory consultative process to be effective, meaningful, purposive and consensus oriented---If the recommendations of Chief Justice of Pakistan are not based on such consultative process, such recommendations to the Executive will not be binding and if the Executive accepts such recommendations, it will become justiciable---Non-justiciablity is attached to the recommendations of the Chief Justice of High Court and that of Chief Justice of Pakistan expressed conjunctively---Law and principles on the subject elaborated. 

 

Judges’ case PLD 1996 SC 324; Judges’ case AIR 1994 SC 268, p.447 by His Lordship Verma, J; Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; Justice Ghulam Haider Lakho v. Federation of Pakistan PLD 2000 SC 179 ref.

 

(h) Constitution of Pakistan (1973)---

 

----Arts. 177 & 260---Appointment of Judge of Supreme Court---Consultative process---Principles---Article 177 of the Constitution provides that the Judges of Supreme Court shall be appointed by the President in consultation with Chief Justice of Pakistan---Only one judicial consultee is provided and by the dint of Judge’s case and the definition of the word “consultation” in the Constitution, the consultation of the Chief Justice of Pakistan in appointment of Judges in the Supreme Court has been made binding on the President. 

 

(i) Constitution of Pakistan (1973)---

 

----Art. 197---Appointment of Additional Judge of the High Court---Expectancy of Additional Judge of being made a permanent Judge--Principles.

 

Though there is well-established practice/convention of an Additional Judge being appointed against a permanent vacancy has a reasonable expectancy to be considered for appointment as a permanent Judge but such expectancy has been made subject to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan---If the Chief Justice of the High Court does not recommend the appointment of an Additional Judge as a Permanent Judge, the qualification of reasonable expectancy will not stand, for that in order to take contrary view from the one taken by the Chief Justice of the High Court concerned either strong reasons have to be assigned or his consensus through consultative process is obtained. The rule of fitness and suitability has an edge over the principles of seniority and legitimate expectancy. 

 

(j) Constitution of Pakistan (1973)---

 

----Arts. 193 & 199(1)(b)(ii)---Constitutional petition---Maintainability---Constitutional petition challenging the right to hold office of a Judge of High Court is maintainable under Art.199(1)(b)(ii) of the Constitution. 

 

(k) Constitution of Pakistan (1973)---

 

----Arts. 193, 197 & 260---Appointment of High Court Judges---Consultative process---Principles---Consultation with regard to the confirmation and/or extension of a Judge of the High Court by the President/Executive with the consultees mentioned in Arts.193 & 197 of the Constitution read with definition of “consultation” under Art.260 of the Constitution has to be effective, meaningful, consensus oriented, purposive--Any appointment, confirmation and or extension in disregard of said principles shall be violative of the Constitution and the well-established constitutional conventions and thus invalid---Where the said procedure was not adhered to in the matter of confirmation and extension of an Additional Judge of the High Court, his “confirmation” was held by the Full Bench to be treated as an “extension” in his tenure as an Additional Judge of High Court as recommended by the Chief Justice of the concerned High Court, for a period of one year from the date of expiry of his tenure as mentioned in the notification relating thereto---Chief Justice of concerned High Court having not recommended the name of an Additional Judge for extension in his tenure, extension in his tenure being violative of the Constitution, was declared invalid. 

 

Per Faisal Arab, J; Mushir Alam; Khilji Arif Hussain and Maqbul Baqar, JJ agreeing---

 

(l) Constitution of Pakistan (1973)---

 

----Arts. 193, 197, 199(1)(b)(ii)(5) & 209---Appointment of High Court Judges---Constitutional jurisdiction of High Court---Scope---Contentions regarding maintainability of the constitutional petition challenging constitutionality of appointment of High Court Judges were that no proceedings in the nature of quo warranto lay against a Judge of a High Court as under Art.199(5) of the Constitution, High Courts had been specifically excluded from the definition of “person” as under Art.192 of the Constitution, High Court meant and included its Chief Justice and all the puisne Judges, therefore, proceedings under Art.199(1)(b)(ii) of the Constitution were not maintainable even against a Judge of a High Court as he did not come within the meaning of “person” provided in Art.199(1)(b)(ii) Of the Constitution and that in case a Judge of superior Court was not fit to hold his office, Art.209 of the Constitution should be resorted to---Validity---Held, under Art.199(1)(b)(ii) of the Constitution, right of a person to hold a public office could be tested--Validity and constitutionality of appointment of a Judge of High Court was outside the purview of the enquiry under Art.209 of the Constitution---Remedy provided under Art.209 of the Constitution, therefore, could not be equated with the proceedings filed under Art.199(1)(b)(ii) of the Constitution to challenge the unconstitutional appointment of a Judge of superior Court---Principles.

 

Under specific provision of Article 199(1)(b)(ii) of the Constitution, right of a person to hold a public office can be tested. The provisions of this Article are applicable in cases where there is (i) intrusion or usurpation of a public office i.e. either the office was never granted to a person or if granted, his right to the office subsequently stood terminated or forfeited or (ii) the grant of public office is found to be legally defective. In any of these situations, a High Court can declare the right to a public office to be invalid. Hence under Article 199(1)(b)(ii) of the Constitution, a High Court can inquire from a holder of public office, by what authority he has a right to hold his office. While examining the legality of an appointment to a public office, not only the authority of the grantee comes under scrutiny but the scrutiny can go beyond the grant itself and examine the very propriety and legality of the procedure that was adopted in the grant of public office. In other words, a High Court can examine the question whether the procedure that was followed for making an appointment conforms to the requirements of the law and the accepted norms established over the years that have come to be recognized as constitutional conventions. It is an appropriate remedy in cases where public has some interest in the controversy that needs to be resolved and is not meant to be invoked purely for protecting interests of a private right i.e. it cannot be used to question the legality of official acts that a holder of office has performed while in office to which he had no right. Thus, this remedy under Article 199(1)(b)(ii) of the Constitution is limited only to examine a right to a public office. 

 

When the appointment of a Judge of superior Court is called in question on the ground that he did not possess the prescribed qualifications or his appointment does not fulfil the requirements of the Constitution, the relater is not asking the Court to strike down any of his actions which he had performed or is performing as Judge of a superior court but is .asking to examine his right to hold the office of a Judge of the superior Court. Such a case does not fall within the mischief of the provision of Article 199(5) of the Constitution. 

 

In case an appointment is found to be in violation of the provision of any Article of the Constitution, then such person is not entitled to hold and continue in office and the appointment cannot only be called in question on the ground that it infringes the Fundamental Rights guaranteed under Articles 9 and 25 of the Constitution but information in the nature of quo warranto can also be sought through a petition filed under Article 199(1)(b)(ii) of Constitution.

 

The Supreme Judicial Council cannot grant any relief where there is an illegal and unconstitutional appointment to a superior Court. Hence, the validity and constitutionality of appointment of a Judge of a superior Court is outside the purview of the enquiry under Article 209 of the Constitution as it has no nexus either with the mental or physical incapacity of the Judge to perform the duties of his office or with the misconduct of the Judge. The remedy provided under Article 209 of the Constitution, therefore, cannot be equated with the proceedings filed under Article 199(1)(b)(ii) of the Constitution to challenge the unconstitutional appointment of a Judge of a superior Court.

 

Proceedings in the nature of quo warranto against a judge of a superior Court are maintainable under Article 199(1) (b) (ii) of the Constitution and provisions of Article 209 of the Constitution have no application in such matters.

 

In case violation of the provision of Constitution is brought to the notice of a Judge of a superior Court in appropriate proceedings which involves the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined at the cost of maintaining high tradition to have comity amongst the Judges. 

 

Asad Ali v. Federation’ of Pakistan PLD 1998 SC 161 ref.

 

(m) Sindh Chief Court Rules (AS)---

 

----R. 12(2)---Sindh Courts Act (VII of 1926), S.12---Constitution of Full Bench by Chief Justice of High Court---When a Full Bench was not constituted on the request of a Division Bench and no question as contemplated by R.12(2), Sindh Chief Court Rules (AS) had been referred for its decision, R.12, Sindh Chief Court Rules (AS) was not applicable-Principles: 

 

(n) Constitution of Pakistan (1973)---

 

----Arts. 193, 197 & 199---Pakistan Legal Practitioners and Bar Council Rules, 1976, R.165---Memorandum of Association of the Sindh High Court Bar Association, Art.3(d)---Appointment of High Court Judges---Challenge to constitutionality of such appointments by Sindh High Court Bar Association under Art.199 of the Constitution---Contention of the respondents was that Bar Association, had no locus standi to maintain a constitutional petition on the issue---Validity---Held, duty of Advocates was not limited to their obligations towards their clients and courts but they also have to keep their eyes and ears open and raise their voice whenever an occasion arises in order to ensure that no political interference takes place which may compromise the independence of judiciary---Rule 165, Pakistan Legal Practitioners and Bar Councils Rules., 1976 and Art.3(d) of the Memorandum of Association of the Sindh High Court Bar Association entitled the Bar Association, which was a body of advocates, to protest earnestly and actively against the appointment of Judges through a process, which was not mandated by the Constitution and Constitutional conventions and had every right to call in question any executive action that interfered with the independence of judiciary---Sindh High Court Bar Association, which was a body of advocates of the Sindh High Court, therefore, had locus standi to file the constitutional petition. 

 

Sharaf Fridi v. Federation of Pakistan PLD 1989 Kar. 404; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Judges’ case PLD 1996 SC 324 ref.

 

(o) Constitution of Pakistan (1973)---

 

----Arts. 193, 177 & 199---Appointment of High Court Judges---Opinion of Chief Justice of Pakistan on the recommendations of Chief Justice of concerned High Court---Justiciability---Scope---Where an appointment is challenged on the ground that consultative process lacked constitutional requirements and disregarded the rule laid down in Judges’ case, such is a situation where the question of non-justiciability would not arise---If such situation was not made justiciable then it would not be possible to question an appointment even if it was made in violation of rules laid down in the Judges’ case. 

 

Judges’ case PLD 1996 SC 324 ref.

 

(p) Constitution of Pakistan (1973)---

 

----Arts. 177, 193 & 199---Appointment of High Court Judges---Remarks made in relation to an appointee by judicial consultees under Arts.177 & 193 of the Constitution were not justiciable---Full Bench expunged all averse remarks made against respondents (appointee Judges) in the petition that were said to have been expressed by the Chief Justice of the High Court in his opinion---Full Bench observed that the Bench shall be examining the opinions of judicial consultees only for the limited purpose to form its (Full Bench) opinion on the question whether in confirmation of the Judge of the High Court and extension in the judicial tenure of other two Judges, the consultative process was carried out as was required to be undertaken under Art.193 of the Constitution and defined by Supreme Court of Pakistan in its various judgments, most particularly the Judges’ case. 

 

Judges’ case PLD 1996 SC 324 ref.

 

(q) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment of Judges of the High Court---Method---Consultative process---Principles.

 

The method of appointment of a Judge or an Additional Judge of a High Court is the same i.e. the one that is provided in Article 193 of the Constitution. Article 193 provides that appointment of a Judge of a High Court is to be made by the President after consulting with (a) the Chief Justice of Pakistan, (b) the Governor concerned, and (c) the Chief Justice of the concerned High Court (except where the appointment is that of the Chief Justice of the High Court itself).

 

The Judges’ case recognizes the importance of consultations in the whole process of appointment of Judges to the superior Courts and therefore, the term “consultation” was given an extensive and elaborate meaning. 

 

The word “consultation” was given wider and enlarged meaning keeping in view the fact that appointments relate to the exalted position in the judiciary that has to function independently. It was for this reason felt that no room should be left for political considerations in the appointment of Judges as it would then compromise on the requisite credentials, which Judges of superior Court must possess. To achieve this objective, importance of the opinion of the Chief Justice of the High Court to which appointments are to be made was recognized along with the opinion of the Chief Justice of Pakistan. The opinion of both the judicial consultees being expert opinion, in case they (any of them) find a person not fit and capable to be appointed as Judge of a High Court then the executive must not act against such advice. 

 

Judges’ case accords constitutional recognition to the convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Pakistan in the appointment of Judges to the Federal Court now Supreme Court and the High Courts that was in vogue prior to the independence and continued since then. It was considered that continuation of such convention would result in induction of competent and capable people of known integrity in the superior judiciary which is assigned very delicate task to ensure that all the functionaries of the State act within the limits delineated by the Constitution and close the doors for making appointments on political consideration. The words “after consultation” referred to, inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the judicial consultees and executive consultees as both the set of consultees are well-equipped in their specific spheres to assess the suitability of a candidate for judgeship in the superior Courts and none of the consultees is less important or inferior to the other. 

 

The views of none of consultees can be rejected arbitrarily and in fanciful manner. If a person found unfit to be a Judge of the High Court by the Chief Justice of the High Court concerned or the Chief Justice of Pakistan then he cannot be appointed by the President as it will not be a proper exercise of power under Article 193 of the Constitution. The consultative process is mandatory and without it no appointment/confirmation can be made and in absence of consultation as contemplated and interpreted by the Supreme Court (Judges’ case) the appointment or confirmation of a Judge in the superior Courts shall be invalid. 

 

Thus, it is quite evident that while making appointments to the superior Courts, there is no room for arbitrariness. When a Judge of a High Court is to be appointed, the Chief Justice .of Pakistan and the Chief Justice of the concerned High Court have to first arrive at a consensus on the appointment of a recommendee by engaging themselves in a participatory consultative process. The final opinion so reached is then forwarded by the Chief Justice of Pakistan to the executive. The adoption of such procedure is mandatory. Failure to do so would invalidate the appointment or confirmation of a Judge as it would not be regarded as an outcome of an effective, meaningful and consensus oriented consultations. 

 

Though the Chief Justice of the Supreme Court is head of the entire Judiciary and may be figuratively paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional functionary when it comes to the appointment of Judges of the High Courts and in the entire consultative process it cannot be said that, in any way, his role is less important than the role of the Chief Justice of the Supreme Court. 

 

When consultation is a constitutional requirement then it cannot be treated as a mere formality. The whole object of appointment through consultative process would be defeated if even after the differences in the opinions of the two judicial consultees, no further consultations take place between them. In the present case, there was total absence of having any further consultations with the Chief Justice of High Court in spite of the differences in the two opinions. Thus, the consultative process lacked basic requirements of the “consultations” as defined in the Judges’ case and thus, the confirmation of a Judge and extension in the judicial tenure of Judges was in complete violation of the rules laid down in the Judges’ case. 

 

Al-Jehad Trust’s case PLD 1996 SC 324; Malik Asad Ali’s case PLD 1998 SC 161; Ghulam Haider Lakho’s case PLD 2000 SC 179; Supreme Court Bar Association’s case PLD 2002 SC 939; S.P. Gupta v. Union of India AIR 1982 SC 149 and Supreme Court Advocates-on-Record Association v. Union of India AIR 1994 SC 268 ref.

 

(r) Constitution of Pakistan (1973)--

 

----Arts. 193 & 197---Appointment of Judges of the High Court---Consultative process---Primacy of opinion---Principles.

 

Constitution has not envisaged giving primacy to the opinion of any individual judicial consultee in the matter of appointment of Judges to the High Courts. In the matter of appointment of High Court Judges, the opinion has to be formed by both the judicial consultees collectively. When such an opinion is formed, the Chief Justice of Pakistan forwards the same to the Executive. When this collective opinion comes in conflict with the opinion of the Executive it has to be given primacy for the reason that the Chief Justice of High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship. They are well-equipped to assess the knowledge and suitability of a person who is being considered for appointment as a Judge. 

 

Wherever it is stated in Judges’ case that the opinion of the Chief Justice of Pakistan has primacy, insofar as it relates to the appointment of High Court Judges, it means primacy of the common opinion collectively formed by both the judicial consultees over the opinion of the Executive. The reason for stating that opinion of the Chief Justice of Pakistan has primacy is because the collective opinion is finally forwarded by the Chief Justice of Pakistan to the appointing authority i.e. the President. When this collective opinion comes in conflict with the opinion of the Executive then it has to be given primacy over the opinion of the Executive in order to preserve independence of the judiciary. In such a situation if the Executive does not wish to appoint the recommendee on account of negative opinion about his antecedents, the Executive is bound to give reasons for that, whereas no reasons are required to be given by the judicial consultees for their negative opinion about a recommendee. Therefore, in case a person is found to be unfit for appointment by the Chief Justice of the High Court concerned or the Chief Justice of Pakistan then he cannot be appointed as it will not be a proper exercise of power under Article 193 of the Constitution. This restriction on the powers of the appointing authority not to appoint a person who has not been recommended by either of the two judicial consultees gives primacy to their opinion over the opinion of the Executive. Thus, the negative opinion of any of the judicial consultees cannot be ignored by the Executive in any circumstance. 

 

Judges’ case PLD 1996 SC 324 ref.

 

(s) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment of Judges of the High Court--Constitutional Conventions---Enforceability---Constitutional Conventions are enforceable as if they are provisions of the Constitution---Guidance has to be taken from well-established Conventions, which have dealt with similar situations in the matter of appointment of Judges in the past---Where the Chief Justice of High Court gives negative opinion about a person and Chief Justice of Pakistan holds a positive opinion then it is all the more necessary that the matter be referred back to the Chief Justice of the High Court for reconsideration and only after reaching consensus, recommendations be sent to the appointing authority. 

 

Judges’ case PLD 1996 SC 324 and Malik Asad Ali’s case PLD 1998 SC 161 ref.

 

(t) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Confirmation of Additional Judges of the High Court---Procedure to be followed.

 

In the matter of confirmation of additional Judges of the High Courts, the procedure that is followed is that before the judicial tenure of an Additional Judge of a High Court expires, the Chief Justice of the concerned High Court decides (a) whether or not to recommend him for confirmation or (b) whether his tenure needs to be extended for a further period and the question of confirmation be deferred till then. The Constitution has specifically assigned a consultative role to the Chief Justices of the High Courts in the entire process of appointment of Judges/Additional Judges to their respective High Courts. The object of having consultations between the Chief Justice of a High Court and Chief Justice of Pakistan is to appoint such persons who are fit and suitable to hold the office of the High Court Judge and about whom there are no differences of opinion about his fitness and suitability. Differences on the fitness and suitability of a person make him controversial. In such circumstances it is better not to appoint a controversial person who though may be otherwise fit to be appointed as a Judge. This is so because both the judicial consultees have been collectively entrusted with the obligation to appoint such persons whose credentials to hold the office of Judge are beyond reproach. When there is collective responsibility then there is no room for arbitrariness. Appointing a person about whom there are reservations in the mind of any of the two judicial consultees is certainly going to create an adverse perception among the lawyers’ community as well as among the public which may shatter confidence in the judiciary.

 

Therefore, in case the Chief Justice of the High Court gives his negative opinion and does not recommend confirmation or extension in the judicial tenure of an additional Judge and on the other hand the Chief Justice of Pakistan is of the opinion that the additional Judge deserves to be confirmed then both the judicial consultees must engage themselves in further consultations. The two judicial consultees must discuss on the point of their differences and reach at some consensus. It is only after reaching consensus that the Chief Justice of Pakistan forwards the final opinion to the Executive. In this manner, the final opinion that is communicated by the Chief Justice of Pakistan to the executive is not merely his individual opinion but an opinion that is formed collectively by both the judicial consultees after engaging themselves in consultative process. The main object of having consensus-oriented consultations could only be achieved if such a course is adopted. 

 

Any deviation in the method of appointment prescribed under the Constitution and defined in the Judges’ case is likely to shake the confidence of the public in the institution of judiciary and tarnish its image as the neutral arbiter in disputes between citizen and citizen and citizen and State and therefore, such deviation would vitiate the right to hold office. 

 

Any adverse remark expressed in relation to any person by any of the judicial consultees in the course of the consultative process is not open to judicial scrutiny and hence not justiciable. What is open to judicial scrutiny is the propriety and legality of the consultative process which, if found to be deficient on the touchstone of the provisions of the Constitution (as defined in the Judges’ case and practised through well-established constitutional Conventions), would lead to invalidating the appointment. 

 

Judges’ case PLD 1996 SC 324 and Malik Asad Ali’s case PLD 1998 SC 161 ref.

 

(u) Constitution of Pakistan (1973)---

 

----Arts. 193, 197 & 203---Appointment of Judges of the High Court---Executive cannot appoint a candidate for judgeship if the Chief Justice of the concerned High Court or the Chief Justice of Pakistan has given negative opinion, in the entire process of appointment and/or confirmation of High Court Judges, the opinion of the Chief Justice of the High Court is of vital importance---Ignoring the opinion of Chief Justice of the High Court would amount to treating his opinion as a mere formality---Principles.

 

Though the President has sole power to appoint Judges but the opinion of the consultees, particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be experts in the field of law in which the appointment is to be made, cannot be ignored. The Chief Justice of the High Court and the Chief Justice of Pakistan normally know the advocates who appear in their Courts regularly and therefore, they would recommend names of such advocates who are capable and fit to be Judges of the High Court. It is in this context that their opinions, which is expert opinion in a way, cannot and should not be ignored. Then some of the elevations to the High Courts are made from the subordinate judiciary as well. The Chief Justice of the concerned High Court is in a better position to know the performance and capabilities of the Judges of the subordinate judiciary by virtue of Article 203 of the Constitution. This Article entrusts the concerned High Court with the responsibility to supervise and control all Courts subordinate to it. The Chief Justice of the concerned High Court is in direct contact with the District Judges and is aware of their performance as Judges. The Chief Justice of the concerned High Court therefore, is in best position to know their potential and capability to become Judges of the High Court. In this background, the opinion of the; Chief Justice of the concerned High Court gains immense importance when it comes to the appointments that are to be made to his High Court. The negative opinion of both the judicial consultees has to be respected. In case the Executive gives negative opinion about a person for reasons of his improper antecedents in whose favour the Chief Justice of the High Court and the Chief Justice of Pakistan have given their positive opinion the Executive may not appoint such person but it has to give strong reasons for that. On the other hand the Executive cannot appoint a candidate for judgeship if the Chief Justice of the High Court or the Chief Justice of Pakistan have given negative opinion. In the entire process of appointment and/or confirmation of High Court Judges, the opinion of the Chief Justice of the High Court is of vital importance. Ignoring his opinion would amount to treating his opinion as a mere formality. 

 

Judges’ case PLD 1996 SC 324 ref.

 

(v) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment of Judges of High Court---Differences as to suitability and fitness about a candidate between the two judicial consultees---Principles.

 

Whenever differences as to suitability and fitness arise about a person between the two judicial consultees, attempt should be made to reach at some consensus. If no consensus is reached then the Executive cannot appoint such a person, as it would not be a proper exercise of power under Article 193 of the Constitution. Then to maintain transparency, the entire consultative process must also be reflected from the record i.e. it should be in writing. The Executive cannot choose from any of the two diverse opinions of the judicial consultees and appoint a person which the executive deems fit. The Executive can only vouch for the antecedents of a person, which too are justiciable. Appointing a person that is likely to give rise to controversy should always be avoided at all costs. Disregard of this principle, which has its root in the time-honoured Conventions, would defeat the very object for which the consultative process was devised in the Constitution and defined in the Judges’ case. 

 

Judges’ case PLD 1996 SC 324 ref.

 

(w) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment/confirmation of Judges of High Court---Consultative process, in the present case, had not been validly held while confirming an Additional Judge of the High Court---Contention was that when the Judge was administered oath by the same Chief Justice of the High Court who had not recommended his confirmation, therefore, legal infirmity, if any, stood cured---Validity---Held, there was no estoppel against the law or the Constitution---Oath by itself could not cure the defect that was left in the consultative process, which was a mandatory requirement of the Constitution---No consultee possessed exclusive role in the appointment of a High Court Judge---If the Chief Justice of High Court gave oath to a Judge on account of notification by the appointing authority, that did not mean that the consultative process that originally lacked validity under the Constitution would become valid---Obligation to have effective, meaningful, purposive and consensus oriented consultations . before final recommendations were sent to the Executive for consideration had to be discharged in the light of time-honoured past Conventions and the rules laid down in the Judges’ case---Giving oath was secondary which would not cure the inherent defect in the entire process of confirmation of a High Court Judge. 

 

Judges’ case PLD 1996 SC` 324 ref.

 

(x) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment of Judges of High Court---Question, in the present case, was whether in the matter of recommendation, extension, confirmation or otherwise of Additional Judges of High Court, there was ‘consultation by and between the Constitutional consultees within the contemplation of Articles 193 & 197 of the Constitution, as expounded by the Supreme Court of Pakistan in the cases of Al-Jehad Trust’s case (PLD 1996 SC 324); Malik Asad Ali’s case (PLD 1998 SC 161); Ghulam Haider Lakho’s case (PLD 2000 SC 178) and the Supreme Court Bar Association’s case  (PLD 2002 SC 939)---Verdict of the High Court with regard to the controversy involved in the case summarized.

 

Following is the summary of the verdict of the High Court on the subject.

 

(i) It is time honoured constitutional Convention that the process of appointment of a High Court Judge is initiated by the Chief Justice of the concerned High Court and the recommendation for appointment is finally forwarded to the appointing authority by the Chief Justice of Pakistan and this is done only , after both the judicial consultees have reached consensus by engaging themselves in a participatory consultative process.

 

(ii) The norms that have emerged from the time honoured constitutional conventions have to be respected in the entire consultative process. Guidance has to be taken from the well-established constitutional Conventions, which have dealt with similar situations in the past. Appointing a person that may give rise to controversy should be avoided at all costs. Disregard of this principle, which has its root in the time-honoured conventions, would defeat the very object for which the consultative process was devised in the Constitution and defined in the Judges’ case.

 

(iii) In the Judges’ case (PLD 1996 SC 324) wherever there is reference to the opinion of “the Chief Justice of Pakistan and the Chief Justice of the High Court”, the Word “and” appearing in the said phrase is to be read to mean the opinion which both the judicial consultees have collectively formed with regard to the suitability and fitness of a person.

 

(iv) Wherever it is stated in the Judges’ case that the opinion of the Chief Justice of Pakistan has primacy, insofar .as it relates to the appointment of High Court Judges, it refers to the opinion that is collectively formed by both the judicial consultees with consensus that has primacy over the opinion of the executive consultees.

 

(v) When the Chief Justice of the High Court in his opinion expresses disapproval of any person to be appointed as Judge and on the other hand the Chief Justice of Pakistan finds such person to be suitable for appointment then the record must reflect that further consultations were held between them to sort out the differences. Without addressing the differences in the two opinions, the purpose of having meaningful and effective consultations could never be realized.

 

(vi) In order to ensure effective consultations between the Judicial consultees; the reasons for disagreement, if any, must be disclosed to the other for reconsideration.

 

(vii) Where the differences between the Chief Justice of Pakistan and Chief Justice of the High Court remain, in spite of an attempt to sort them out, then appointment should not be made as it would not be in the best interest of the judiciary to appoint a controversial person.

 

(viii) The Chief Justice of Pakistan and the Chief Justices of High Courts are head of their respective institutions and therefore, if any of them find a person not fit and capable to be appointed as a Judge of the High Court then the Executive cannot disregard such negative opinion and must not appoint a controversial person as it would not be proper exercise of power under Articles 193 and 197 of the Constitution.

 

(ix) In case the Executive wishes to disagree with the positive opinions of the judicial consultees on account of its negative opinion about the antecedents of a person, it has to give strong reasons, which shall be justiciable but the Executive cannot appoint a person in case the Chief Justice of the High Court or the Chief Justice of Pakistan has given negative opinion about his suitability and fitness.

 

(x) In order for the consultative process to be credible and transparent, it should always be in writing and must form part of the record, as the appointment of Judges to’ the superior Courts is too important a matter to be left to speculation and conjectures.

 

(xi) The concept of non-justiciability was devised only to provide a carte blanche to the judicial consultees so that they, while considering appointments under the Constitution, may give their free and frank opinion about a person, without any inhibitions and without putting up with the embarrassment that is bound to come, in case the adverse remarks made in their opinions are made justiciable and allowed to be challenged through representations and legal proceedings.

 

(xii) What is open to judicial scrutiny is the propriety and legality of the consultative process which if found to be deficient on the touchstone of the provisions of the Constitution (as defined in the-Judges’ case) and the well-established constitutional Conventions, would invalidate the appointment. 

 

In order for a consultative process to be in line with the constitutional requirements and well-established constitutional Conventions, no appointment, confirmation or extension in the judicial tenure of an Additional Judge of High Court could be valid if the Chief Justice of the concerned High Court has not given his positive recommendations in the matter or revised his earlier negative recommendations. 

 

Al-Jehad Trust’s case PLD 1996 SC 324; Malik Asad Ali’s case PLD 1998 SC 161; Ghulam Haider Lakho’s case PLD 2000 SC 179 and Supreme Court Bar Association’s case PLD 2002 SC 939 ref.

 

(y) Constitution of Pakistan (1973)---

 

----Arts. 193 & 197---Appointment of Judges of the High Court---Consultative process-Constitutional requirements and constitutional conventions---Held, in order for a consultative process to be in line with the constitutional requirements and well-established Conventions, no appointment, confirmation or extension in the judicial tenure of an Additional Judge of High Court could be valid if the Chief Justice of the concerned High Court has not given his positive recommendations in the matter or revised his earlier negative recommendations. 

 

Per Mushir Alam, J, agreeing with. Gulzar Ahmad and Faisal Arab, JJ

 

(z) Constitution of Pakistan (1973)---

 

----Arts. 175(3), 193, 197 read with Art.260---Appointment of Judges of the High Court---Disagreement of Chief Justice of Pakistan with the recommendation of Chief Justice of concerned High Court---Option of initiating .participatory consultative and consensus-oriented process through exchange of correspondence or invitation to the Chief Justice of concerned High Court---Non-arrival of judicial consultees to any consensus---Role of the President in such circumstances---Scope and extent elaborated.

 

The disagreement of Chief Justice of Pakistan with the recommendation of Chief Justice of High Court is not something unusual in the context of appointment, extention or confirmation of a Judge of High Court and instances are there. It is but part of the healthy consultative process aiming at arriving at consensus amongst the judicial consultees. In case the Chief Justice of Pakistan disagrees with the opinion of the Chief Justice of High Court in the matter of appointment, extention or confirmation or otherwise of a Judge of High Court for any good reasons same may be disclosed to the Chief Justice of concerned High Court to enable him to reconsider his recommendation. If the Chief Justice of concerned High Court still does not deem it necessary to review his opinion as regards non-recommendation either for appointment, extention or non-confirmation of a Judge as the case may be, and he maintains his opinion, then non-appointment, non-extention or non-confirmation of that person as a Judge of High Court for reasons to be recorded by the President is permissible in the public interest. If the non-appointment, non-extention or non-confirmation in rare case, on this ground, turns out to’ be a mistake, in the ultimate public interest the same is less harmful than a wrong appointment. One can very well imagine the devastating and far reaching consequence of wrongful appointment and the judiciary of Pakistan has suffered immensely on this count.

 

In case of disagreement between the Judicial Consultee, Chief Justice of Pakistan has option to initiate participatory consultative and consensus-oriented process, through exchange of correspondence or may invite the Chief Justice of concerned High Court and engage into integrated participatory consultative process for selecting the best of the best and most suitable person available for appointment. In event consensus inter se judicial consultee cannot be arrived at, and a person is opined to be unfit by the Chief Justice of the concerned High Court for the judgeship of the High Court, such person should not be recommended for appointment, extention and or confirmation by the Chief Justice of Pakistan. From the record made available to us on the subject-matter, it appears that the President in the present case, acted mechanically, without application of mind in post haste in issuing the notification on the very date of receipt of recommendation, without making any conscious effort to encourage consensus amongst the two judicial consultees.

 

Role of the President in the appointment of Judges of superior Courts should not be taken lightly to be merely ceremonial, mechanical, or executive; it is solemn constitutional duty of vital importance, which must, be performed and discharged objectively, impartially with due deference, seriousness and conscious application of mind, in its true spirit to maintain the independence, dignity and majesty of the Judiciary, the pivotal pillar of the State and with the object to select the best of the best and most suitable person for the judgeship of superior Courts.

 

If the President/Executive appoints a candidate found to be unfit and unsuitable for the judgeship of the High Court by either of the two judicial consultees, it will not be a proper exercise of important and solemn constitutional authority, under the. Articles 175(3), 193, 197 read with Article 260 of the Constitution.

 

Non-adherence to the constitutional duty cast upon the President/Executive, and non-observance of mandatory consultative procedure as noted above, amounts to abdication in discharge of its important and constitutional duty. If the President/Executive appoints a candidate found to be unfit and unsuitable for the judgeship of the High Court by either of the two judicial consultees, it will not be a proper exercise of power under the relevant Articles of the Constitution and is always justiciable and amenable to judicial review by superior Courts for the simple reason that mandatory procedure of meaningful, consensus oriented and purposive consultation was not adhered to. 

 

S.C. Advocates-on-Record Association v. Union of India AIR 1994 SC 268 and AIR 1999 SC 1 ref.

 

Rasheed A. Rizvi for Petitioner.

 

Sardar Abdul Latif Khosa, Attorney General of Pakistan along with Nazar Akbar, Deputy Attorney General for Pakistan for Respondent No.1.

 

Yousuf Leghari, Advocate General, Sindh and. Aziz A. Munshi, Advocate for Respondent No.2.

 

None present for Respondent No.3.

 

Yawar Farooqui and Irfan Memon for respondent No.4.

 

Muhammad Javed Alam, Advocate for respondent No.5.

 

Khalid Anwar, Abdul Hafeez Lakho and Qazi Faez Isa as Amicus Curiae.        

 

Dates of hearing: 14th, 21st, 22nd, 27th, 28th 29th, 30th April, 2009 and 4th and 6th May, 2009.

 

JUDGMENT

 

GULZAR AHMED, J.---This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the Sindh High Court Bar Association through its Honorary Secretary Mr. Munir-ur-Rehman with the following prayers:--

 

(i) A writ of quo-warranto be issued against the Respondents No.3,4 & 5 as under what authority they have assumed the offices of the Judge of the Sindh High Court.

 

(ii) That this Hon’ble Court be pleased to declare the appointment of Justice Bin Yamin and as permanent Judge the extension of the judicial tenure of Justice Syed Pir Ali Shah and Justice Arshad Noor Khan as additional Judges of the High Court of Sindh are unlawful, ultra vires the Constitution, mala fide and of no legal consequence.

 

(iii) That in the alternative and without prejudice to the above reliefs, this Hon’ble Court may be pleased to suspend the operation of impugned Notifications.

 

(iv) A writ of prohibition restraining the Respondents No.1 & 2 from appointing or elevating any person as Judge of this Hon’ble Court till decision of this petition.

 

(v) To direct the Ministry of Law, Government of Pakistan to place the entire record of proceedings of consultation before this Hon’ble Court regarding appointment of Judges made on 12`h December 2008.

 

(vi) That this Hon’ble Court be pleased to grant such other relief as may be deemed necessary and just in the circumstances of the case.

 

(viii) That this Hon’ble Court be pleased to award costs of the petition.

 

2. The respondent No.1 in the petition is Federation of Pakistan through Secretary Ministry of Law and Justice, respondent No.2 is the Province of Sindh through Chief Secretary while respondent Nos.3, 4 & 5 are the Judges of this Court, in respect of whom this petition has been filed with the prayer as noted above.

 

3. By the notification dated 14.1.2007, the President of Pakistan under Article 197 of the Constitution read with Provisional Constitutional Order No.1 of 2007 and Oath of Office (Judges) Order, 2007 appointed, besides others, the respondent Nos.3, 4 & 5 as Additional Judges of this Court for a period of one year. While their term as Additional Judges was expiring, the Chief Justice of this Court processed his recommendation for their confirmation or otherwise as Judge of this Court. Ultimately two notifications dated 12-12-2008 were issued. By one of the notification, the respondent No.3 namely Mr. Justice Bin Yamin was appointed as a Judge of this Court and by the other notification the tenure of respondents 4 & 5 namely Mr. Justice Syed Pir Ali Shah and Mr. Justice Arshad Noor Khan as Additional Judges of this court was extended for a period of six months. Both notifications have been impugned by the petitioner in this petition to the extent of respondents 3 to 5.

 

4. Initially this petition was being heard by a Division Bench of this Court comprising of the Chief Justice and a companion Judge sitting with him. On 6-3-2009 petitioner’s counsel requested the Division Bench for constitution of a larger bench upon which he was directed to submit a proper application to the Registrar of the Court. On 1-4-2009, the Chief Justice passed order constituting a larger bench for hearing of this petition.

 

5. During the hearing of this petition the petitioner’s counsel made a statement that in view of the fact that Mr. Justice Iftikhar Muhammad Chaudhary, the Hon’ble Chief Justice of Pakistan has been restored to his office, he does not press prayer (iv), which may be dropped from the petition. M/s. Khalid Anwar, Abdul Hafeez Lakho and Qazi Faez Isa senior Advocates were appointed as Amicus Curiae to assist the Court in dealing with the intricate and substantial question of interpretation of constitutional law involved in the matter. The Attorney General, of Pakistan and the Advocate General Sindh have already been issued notices as is required by order XXVII A, C.P.C.

 

6. The petitioner had filed applications seeking directions to the respondent No.1 and the Registrar of this Court to place before this Court entire record of consultation proceedings regarding respondents Nos. 3, 4 & 5. Such applications of the petitioner were disposed of by directing the respondent No.1 to make available such record for the examination of the Court and that such record should be kept with the learned Attorney General/Deputy Attorney General to enable the Court to examine the same, if deemed necessary.

 

7. At the outset, learned Advocate General, Sindh raised two preliminary objections; one of which was that larger bench has not been constituted in accordance with Rule 12 of Sindh Chief Court Rules (AS) and secondly, the petition is not maintainable. These objections were raised by the learned A.G. Sindh on 14.4.2009 and it was ordered that such objections will be heard and decided after hearing all the learned counsel on the main petition at Katcha Peshi stage. On 21.4.2009, learned A.G. Sindh informed the Court that respondent No.2 namely Province of Sindh has appointed Mr. Aziz A. Munshi, Advocate to represent it in the matter, who being not present in court, at the request of learned A.G. Sindh matter was adjourned. Mr. Nazar Akbar, learned Deputy Attorney General made available to the Court, the record in sealed cover of recommendations in respect of respondents No.3 to 5. The sealed cover was opened in the Chamber of Hon’ble Senior Puisne Judge in the presence of all the Members of the Bench, when Mr. Rasheed A. Rizvi, Advocate for the petitioner, Mr. Aziz A. Munshi, Advocate for respondent No.2, Mr. Yawar Farooqui, Advocate for respondent No.4, Mr. Javed Alam, Advocate for respondent No.5 and M/s. Abdul Hafeez Lakho and Qazi Faez Isa, Amicus Curiae were also in attendance. In the sealed cover three documents were found namely:-

 

(i) The recommendation letter of the Chief Justice of Sindh High Court, addressed to the Governor of the Province of Sindh;

 

(ii) The recommendation letter of the .Governor of the Province of Sindh addressed to the Law Secretary, Government of Pakistan, Islamabad; and

 

(iii) The recommendation letter of the Chief Justice of Pakistan addressed to the Secretary Law, Government of Pakistan, Islamabad.

 

8. The cover was then sealed without examining the contents of the three documents and such sealed cover was handed over to the Nazir of this Court for its safe custody in lock and key, with direction to produce the same if their contents are to be examined. Pursuant to this exercise, following question was framed by the Court on which counsel for the parties and Amicus Curiae were called upon to make their submissions:--

 

“Whether in the matter of recommendation, extension, confirmation or otherwise of respondents 3 to 5, there was consultation by and between the constitutional consultees within the contemplation of Articles 193 and 197 of the Constitution of Islamic Republic of Pakistan, 1973, as expounded by Honourable Supreme Court of Pakistan in the cases of Al-Jehad Trust (PLD 1996 SC 324), Malik Asad Ali (PLD 1998 SC 161), Ghulam Hyder Lakho (PLD 2000 SC 178) and Supreme Court Bar Association (PLD 2002 SC 939), respectively.”

 

9. Though the learned A.G. Sindh, who appeared for respondent No.2 and also on notice under Order XXVII-A CPC, has raised objections regarding constitution of bench and on the maintainability of the petition but subsequently as Mr. Aziz A. Munshi, Advocate has appeared for respondent No.2, he did not raise the first objection but stated that in his arguments he will raise the question regarding maintainability of the petition. However, as learned A.G. Sindh has raised objection regarding constitution of the bench, I deem it necessary to address the same in the first instance.

 

10. The precise objection of the learned Advocate General was that Sub-rule (2) of Rule 12 of the Sindh Chief Court Rules (AS) requires one or both referring Judges to sit as Member of the full bench and it being not so, the full bench was not properly constituted. Mr. Rasheed A. Rizvi, has, however, contended that the order dated 1-4-2009, by which the full bench was constituted by the Chief Justice, was not a judicial order but was an administrative order and in any case the Rules referred to by learned Advocate General has no application to this Court, rather High Court Rules and Orders as applicable to the Lahore High Court apply to the Sindh High Court. Mr. Yawar Farooqui, learned counsel for respondent No.4 has made an express statement that he has no objection to the constitution of the full bench. The question as to whether the Sindh Chief Court Rules (AS) are applicable or not to this Court was addressed by a simple statement by a Division Bench of this Court in the case of MESSRS MUQTADA KHAN IQTADA KHAN V. MST. ALLAH RAKHI BEGUM (PLD 1972 Karachi 471), that Sindh Chief Court Rules (AS) do not apply to this court. Besides Sub-rule (2) of Rule 12 make reference to Section 12 of the Sindh Court Act, 1926. Incidentally, the Sindh Court Act, 1926 was repealed by the Section 28 of Punjab/Sindh/NWFP/Balochistan Civil Courts Ordinance, 1962 except Section 8 of it in respect of district of Karachi. Section 8 of the said Act provides that the Chief Court shall be the highest civil court of appeal and revision and the highest Court of criminal appeal and revision for Sindh and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the. Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi. This provision has nothing to do with the constitution of the bench by Chief Justice. To the extent the objection raised by learned Advocate-General on the basis of Sub-rule (2) of Rule 12 of Sindh Chief Court Rules (AS) the same being not applicable to this Court and Sindh Court Act, 1926 except its Section 8 having been repealed, the objection of learned Advocate General has no force and the same is rejected.

 

11. It may, however, be noted that High Court Rules and Orders are being applied in exercise of appellate jurisdiction of this Court as is reflected from the judgments of this Court in the cases of THE STATE v. MUHAMMAD ASHRAF (PLD 1961 (WP) Karachi 452) and ABDUL AZIZ v. ABDUL WAHAB (PLD 1964 (WP) Karachi 630) (Full Bench). This Court has also made certain amendments in the High Court Rules and Orders and one of such amendments was made by Sindh Amendment vide Correction Slip 188, published in Gazette of Sindh Part-IV-A dated 23.10.1975. The origin of application of the High Court Rules and Orders to this Court seems to have its source upon constitution of the High Court of West Pakistan through High Court of West Pakistan (Establishment) Order 1955 with its principal seat at Lahore and benches at Karachi and Peshawar and circuit courts in other places of Province of West Pakistan. High Court Rules and Orders which were applicable to High Court of Judicature at Lahore apparently came to be applied to the West Pakistan High Court bench at Karachi more so for the reason that through Order of 1955, the Chief Court of Sindh ceased to exist. This was further fortified by repealing of the Sindh Court Act, 1926 (except its Section 8) by the Civil Court Ordinance, 1962. Though through subsequent High Courts (Establishment) Order, 1970 the High Court of West Pakistan ceased to exist and in its place three High Courts were established namely High Court for the Province of NWFP to be called the Peshawar High Court with its principal seat at Peshawar, High Court for the Province of Punjab and Islamabad territory to be called Lahore High Court with its principal seat at Lahore and High Court for the Provinces of Balochistan and Sindh to be called Sindh and Balochistan High Court with its principal seat at Karachi and by the Balochistan and Sindh (High Courts) Order, 1976 the High Courts of Sindh and Balochistan were separated and High Court for the Province of Balochistan to be called High Court of Balochistan with its principal seat at Quetta and High Court for the Province of Sindh to be called High Court of Sindh with its principal seat at Karachi were established but no change as to the application of High Court Rules and Orders to this Court was brought nor any other rules seem to have been made by the Sindh High Court in the terms provided in Article 202 of the Constitution for regulating the practice and procedure of the Court for dealing with its appellate side work.

 

12. Rule 6 of Chapter 3, Part-A High Court Rules and Orders Volume-V provides that a full bench shall ordinarily be constituted of three judges, but may be constituted of more than three judges in pursuance of an order in writing by the Chief Justice. Rule 1 of Chapter 10, part-A of High Court Rules and Orders deals with administrative business and its second proviso lays down that those matters which are the executive concern of the Chief Justice, namely the constitution of benches and the appointment of control of High Court establishment shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice. The above mentioned two rules give ample power to the Chief Justice to constitute bench including the full bench without any condition and that it is not necessary for the Chief Justice to sit as a member of the full bench constituted by him.

 

13. The next question that may be adverted to at this stage is with regard to the objection-pressed by learned Attorney General, Mr. Aziz A. Munshi, and Mr. Yawar Farooqui that a Civil Petition No.9 of 2009 under Article 184(3) of the Constitution of Islamic Republic of Pakistan filed by the petitioner is pending in the Hon’ble Supreme Court of Pakistan, in which similar question of facts and law are involved as in the present petition and propriety demands that Hon’ble Supreme Court be allowed to decide the said petition first and thereafter this petition may be taken up for hearing by this Court. Mr. Abdul Hafeez Lakho, learned Amicus Curiae has, however, submitted that question or questions be formulated by this Court and same be referred for the decision of Hon’ble Supreme Court. Mr. Khalid Anwar, learned Amicus Curiae has contended that there is no need for. this Court to go into the question as to whether the Chief Justice of Pakistan, who has exercised the power of a consultee under Article 193 of the Constitution, was a de facto or de jure Chief Justice of Pakistan and that such question be left to be determined by Hon’ble Supreme Court and that so far the present petition is concerned, this Court is fully competent to hear and decide the same. Mr. Rasheed A. Rizvi, learned counsel for the petitioner has submitted that Constitutional Petition No.9 of 2009 filed by the petitioner in Hon’ble Supreme Court of Pakistan is altogether for different reliefs and in any case no relief of quo-warranto has been sought in it and that choice of the forum lies with the petitioner and in this respect relied upon the case of MISS BENAZIR BHUTTO v. FEDERATION OF PAKISTAN AND ANOTHER (PLD 1988 SC 416) and contended that the petition may be heard and decided by this Court.

 

14. As the submission is based upon the Constitutional Petition No.9 of 2009, filed in the Hon’ble Supreme Court of Pakistan by the petitioner, I have gone through its contents and find that it is based upon interpretation of notification issued by the President of Pakistan relating to the tenure of appointment as Additional Judges of Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Kalwar and notification of extension of their tenure as Additional Judges and also involves, as a matter of fact, question of mala fides of the respondent No.1 and about the competency and powers of Federal Law, Secretary and also about the weight of opinion of the Chief Justice of Sindh High Court in the matter of making appointments of Additional Judges, recommending extension of their tenure or confirming them as permanent Judges. The relief sought in the said petition is as follows:--

 

(i) to declare that the Respondents Nos.3 and 4 are and continue to be judges of the High Court of Sindh and would continue as Additional Judges till 25th August 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar;

 

(ii) to declare and direct Registrar of the High Court of Sindh that, the Respondents should be assigned regular work as judges of the Sindh High Court;

 

(iii) to issue writ of mandamous directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the Respondents No.3 and 4 further directing the continuance of Respondents No.3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March 2009;

 

(iv) to issue directions to Respondent No.1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March, 2009 before this Hon’ble Court;

 

(v) to issue a writ of mandamus to appoint the Respondents Nos.3 and 4 as permanent judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan;

 

(vi) to grant costs of the petition; and

 

(vii) to grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case.

 

On the other hand, the petitioner in the present petition has sought the following relief:

 

(i) A writ of quo-warranto be issued against the Respondents no.3,4 & 5 as under what authority they have assumed the offices of the Judge of the Sindh High Court.

 

(ii) That this Hon’ble Court be pleased to declare the appointment of Justice Bin Yarnin and as permanent Judge the extension of the judicial tenure of Justice Syed Pir Ali Shah and Justice Arshad Noor Khan as additional Judges of the High Court of Sindh are unlawful, ultra vires the Constitution, mala fide and of no legal consequence.

 

(iii) That in the alternative and without prejudice to the above reliefs, this Hon’ble Court may be pleased to suspend the operation of impugned Notifications.

 

(iv) A writ of prohibition restraining the Respondents Nos.l & 2 from appointing or elevating any person as Judge of this Hon’ble Court till decision of this petition.

 

(v) To direct the Ministry of Law, Government of Pakistan to place the entire record of proceedings of consultation before this Hon’ble Court regarding appointment of Judges made on 12th December 2008.

 

(vi) That this Hon’ble Court be pleased to grant such other relief as may be deemed necessary and just in the circumstances of the case.

 

(vii) That this Hon’ble Court be pleased to award costs of the petition.

 

15. It may be noted that the relief claimed in para (iv) above, was dropped by the learned counsel for the petitioner during the course of hearing of this petition. Putting contents of both the petitions in juxtaposition, it will become evident that Constitutional Petition filed in the Hon’ble Supreme Court is in the nature of issuing to writ of mandamus or for the enforcement of fundamental rights, whereas in the Constitutional Petition in this court the relief claimed is that of quowarranto. The rule for issuing a writ of mandamus/enforcement of fundamental rights and for issuing writ of quo-warranto are governed by two different independent sets of law, in which there is no similarity and the ultimate decision of the Court, in case writs are issued, produces altogether different results. In issuing of writ of mandamus/enforcement of fundamental rights, the Court directs the official functionaries to do and perform what law requires them to do and perform and in case of issuing of writ of quo-warranto the person holding or purporting to hold public office ceases to hold office for it being without authority of law. Thus the end-result is to be measured for exercise of judicial power by the Court and not merely its form or its apparent look. It being different, perhaps the rule of propriety as canvassed will not be attracted.

 

16. Having said that the end result of the petition before Hon’ble Supreme Court and the petition before this Court will altogether be different and further parties effected by it are also different and the Constitution by its Article 199(1)(ii) specifically confers powers on the High Court to entertain and decide a petition of quo-warranto, I, earnestly believe that a constitutional duty has been cast upon this Court to decide such matter, which duty ought not to be abdicated for reason that some point either collaterally or directly involved in this petition be also pending adjudication before the Hon’ble Supreme Court in view of clear distinction in the two matters as noted above. This seems more appropriate in doing so, for the added reason that if any of the party is aggrieved by the decision of this Court, it will have remedy of having the decision of this Court examined by the Hon’ble Supreme Court. In the case of Miss Benazir Bhutto (supra), the Hon’ble Supreme Court at page 488 has observed as follows:--

 

“The opening words “without prejudice” in Article 184(3) mean only not affecting, saving or excepting and when read with the words following thereafter, “to the provisions of Article 199”, the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide a question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exercisable is subject to the limitation under Article 184(3), that is, that the element of “public importance” must be involved in the enforcement of Fundamental Rights.”

 

17. The next argument that was raised is regarding the competency of this Court to issue writ of quo-warranto against a Judge of the High Court. The learned Attorney General has argued that in the case of. ABRAR HASSAN V/S GOVERNMENT OF PAKISTAN & ANOTHER (PLD 1976 SC 315) split decision was given by the Hon’ble Supreme Court on the question as to whether a petition for quo warranto will lie against a Judge of the High Court. He stated that a Judge of High Court. being itself a High Court, no writ can be issued by the High Court against High Court and that there is not a single case where the High Court may have taken up the case of its own Judge about his competency to remain as a Judge or not and relying upon the case of MALIK ASAD ALI V/S FEDERATION OF PAKISTAN (PLD 1998 SC 161) stated that Supreme Court has been conferred superior jurisdiction under Articles 187 & 190 of the Constitution which powers are not available to High Court under Article 199 of the Constitution. Mr. Yawar Farooqui, learned counsel for respondent No.4 has contended that a petition for quo-warranto will not lie against respondent No.4 who fulfils the qualification of being appointed as Additional Judge and that there has been no allegation against him of corruption during his tenure of 31 years service in lower judiciary and that the remarks made on his ACR by Mr. Justice Syed Saeed Ashhad, the then Chief Justice of this Court, requiring improvement, such remarks were also removed from the service record of respondent No.4 before his elevation as Additional Judge of this court. Mr. Abdul Hafeez Lakho, learned Amicus Curiae also contended that High Court does not possess power to issue writ of quo-warranto against a Judge, of its own court. M/s Khalid Anwar and Qazi Faez Issa, the other two learned Amici Curiae contended that this Court is fully competent to decide this petition. Mr. Rasheed A. Rizvi, learned counsel for the petitioner has contended that petition of quowarranto lies against a Judge of High Court and court will also be competent to issue such writ if it is satisfied that there was no consultative process in respect of appointment of Judges as laid down in Al-Jehad Trust’s case.

 

18. Apparently, there was difference of opinion amongst the Hon’ble Judges of Supreme Court in the case of Abrar Hassan (supra) on the question- as to whether a petition of quo-warranto will lie against a Judge of High Court or not. The case of Abrar Hassan was decided by the four Member bench of Hon’ble Supreme Court and on this point, the Court was equally divided. The case of Abrar Hassan subsequently came to be considered by ten Member Bench of the Hon’ble Supreme Court of Pakistan in the case of Malik Asad Ali (supra) where the observation of the Court on this point starts from para. 75 which is as follows:--

 

“75. It is, therefore, quite clear that there was unanimity in the views of all the four learned Members of Bench in Abrar Hassan’s case that the appointment of a Judge of superior Court could be brought under challenge before a Court. However, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. and Anwarul Haq, J. were of the view that a direct proceeding to challenge the appointment of a Judge of superior court under Article 199 of the Constitution would be barred in view of the provision of clause (5) of Article 199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmed and Muhammad Gul, JJ on the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(1)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassan’s case was the result of different interpretation of clause (5) of Article 199 of the Constitution by them.

 

Muhammad Yaqub AAli, C.J. and Anwarul Haq, J. held that the `Judge’ and `High Court’ are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution. The other two learned Members of the Bench, Salahuddin Ahmed and Muhammad Gul, JJ. while disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them, the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court. The point has been aptly illustrated by the learned Judges (Salahuddin Ahmed, J and Muhammad Gul, J. by citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amenable to the jurisdiction of High Court under Article 199 of the Constitution while in the latter case, it cannot be challenged under Article 199 ibid. Once again there appears to be unanimity in the views of all the learned four Members of the Bench in Abrar Hassan’s case, that a Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court.

 

76. The dominant consideration which persuaded Muhammad Yaqub Ali, C.J. and with which Anwarul Haq, J. agreed, were stated in the opinion of Muhammad Yaqub Ali, C.J. as follows:-

 

A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdictions may in the final event, be challenged, by litigants under Article 199 as without, lawful authority on variety of grounds such as error