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Petitioner: Munir Hussain Bhatti And Another VS Respondent: Federation Of Pakistan And Another
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Jawwad S. Khawaja, M. A. Shahid Siddiqui, Tariq Pervez Title: Munir Hussain Bhatti And Another vs Federation Of Pakistan And Another Case No.: Constitution Petitions No. 10 and 18 of 2011 Date of Judgment:2011-03-04 Reported As: K.L.R. 2011 Supreme Court 112 Result: Order accordingly
JUDGMENT
JUDGMENT M.A. SHAHID SIDDIQU I, J. --- These two Constitutional Petitions, bearing Nos. 1C and 18 of 2011, have been filed under Article 184(3) of the Constitution of Pakistan, 1973 challenging the two specific decisions of the Parliamentary Committee, constituted under Article 175A, whereby it refused to confirm the nominations made by the Judicial Com mission, also constituted under the aforementioned Article, for the extension in the tenure of four additional Judges of the Lahore High Court and two additional Judges of the Sindh High Court. Since they involved similar Constitutional and legal issues , they were heard and decided together and a short order was announced on 04.03.201 1. These are the detailed reasons for the same. 2. Constitutional Petition No. 10 of 2011 has been preferred by Mr. Munir Hussain Bhatti, an. Advocate and member of the Lahore High Court Bar Association and Mr. Kamran Murtaza, a former Senator , former Vide Chairman of the Balochistan Bar Council and an Advopdte of this Court. Constitutional Petition No. 18 of 2011 has been filed by the Sindh High Court Bar Association, Karachi through its General Secretary Mr. Abid S. Zuberi and Mr. Anwar Mansoor Khan/President. The prayer in Constitution Petition No. 10 of 2011 is as under:- "It \Sj therefore, respectfully prayed in the interests of justice that this Hon'ble Court may be pleased to accept this petition, quash the recommendations of the Parliamentary Committee in respect of the four learned Judges of Hon'ble Lahore High Court, Lahore, named above and direct the Respondents to implement the recommendations of the Jqdicial Commission and issue a Notification in consonance therewith." 3. Whereas the prayer made by Sindh High Court Bar Association in Constitution Petition No.18 of 2011 is as underlet is prayed on behalf of the petitioners above-named that this Hon'ble Court may be pleased to restrain the respondents from issuing any notification in pursuance of the decision made by the Parliamentary
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Committee dated 22.02.201 1 or interfering in any manner whatsoever in the performance of all judicial functions by the two additional Judges namely Mr. Justice Muhammad Tasnim and Mr. Justice Salman Hamid of Sindh High Court and extend their tenure as recommended by the Judicial Commission till disposal of this petition by the Hon'ble Supreme Court." 4. Mr. Makhdoom Ali Khan, learned Sr. ASC, without touching the vires of Article 175A of the Constitution, argued that the nominations/recommen dations made by the Judicial Commission regarding the competence, eligibility and suitability of Judges for appointment/extension of tenure is exclu sively within the domain of the Judicial Commission. The members of the Judicial Commission, before making recommendations had scrutinized in detail, both reported and unreported decisions of the said Judges and considered in-depth their judicial conduct while holding Court. Therefore, the Parliamentary Committee cannot be allowed to assume the same functions and come to a conclu sion different from that held by the members of Judicial Commission. Assuming otherwise, according to him, will .Put the Judicial Commission, which consists of, amongst others, the Chief Justice of Pakistan, four senior most Judges of this Court, the Chief Justice of the concerned High Courts, Federal Minister for Law, Justice and Parliamentary Affairs, Attorney General for Pakistan and representatives of the Bar, in a subordinate position to that of the Parliamentary Committee; making its recommendation subject to review by the Committee whose domain of expertise is completely dif ferent. 5. He further argued that in the setup prior to the 18th and 19th amendment, the CJP, as repeatedly held by this Court, was the pater families of the judiciary and so the recommendation of a commission headed by him in respect of the competency and ability of Judges could not be reviewed or rejected by the Executive Head/Parliamentary Committee. 6. Learned counsel for the petitioner , confining himself to the judicial aspect of the recommendations, also described the action of the Parliamentar y Committee as corum non judice and without jurisdiction. Therefore, he prayed, that the reasons given by the Parliamentary Committee, for rejectin g the recommendations of the Judicial Commission, were to be held as illegal and void ab initio. Lastly! He argued that the Constitutional requirement of giving reasons, makes the decisions of the Parliamentary Com mittee automatically subject to judicial review and its recommendations cannot be sustained if they do not meet the test of independent judicial scrutiny . 7. Mr. Anwar Mansoor Khan learned Sr/ASC and Mr. Abid S. Zuberi, ASC, took up the stainJe that the unanimous recommendations for extend ing the^enure of the two Judges of Sindh High Court were Ending on the Parliamentary Committee and its rejection without assigning valid and coge nt reasons was opposed to the principle of independence of judiciary . 8. Mr. K.K. Agha, learned Additional Attorney . General, on the other hand, first objected to 'the maintainability of these petitions o^' the ground that the jurisdiction of this Court under Article 184(3) of the Constitution was not attracted. On this score, I have had the benefit of seeing the concurring opinion of my learned brother Jawwad S. Khawaja, J. And I am in full agreement with his reasoning and conclusions on the question of maintainability and the other issues raised in these petitions ! 9. Now we consider another objection of the AAG. He was somehow of the view that the Parliamentary Committee represented the will of the Parliament and thus had supremacy over all other bodies. He also argued that its decision could not be subject of judicial review as the Parliament was the supreme law making institution and its decisions could not be reviewed by any Court. 10. We have considered this argument in detail and find this view to be utterly against the newly added provisions of the . Constitution itself. We cannot comprehend how this "Parliamentary Committee", constituted under Article 175A, can even remotely be considered as a part of the legislature or how, for that matter , any
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question relating to the supremacy of Parliament is involved in this case. The Judicial Commission and the Parliamentary Committee are two limbs of one Constitutional mechanism created by the newly added Article 175A. Both of them owe their existence to Article 175A and not to the provision s relating to the Legislature or the Executive in the Constitution. As such, they are entirely new authorities constituted under Article 175A of the Constitution of Pakistan, 1973. Any authority created under a Constitutio nal provision is bound to act within its specified mandate as per Article 4 of the Constitution of Pakistan. There is thus no immunity from judicial scrutiny reserved for the Committee under the Constitution of Pakistan, 1973 and Article 69 has no application in the instant case. Indeed, none was claimed before us by the Federation. 11. Article 175A(16) further cements the intention that the Committee was not to have any connection or even semblance of relevance to the Legislature or any form of parliamentary attribut e. It was meant simply to be a Committee working under the mandate of Article 175A, owing its existence to the said provision of the Constitution of Pakistan, 1973. Thus, its members, even if they are parliamentarians, are neither required nor permitted to participate in the proceedings of the Committee in their legislati ve capacity . Their background may have been imagined to make some fruitful contributions to the appointment process for Judges, but their background was not to govern their mind while operating under the framework of Article 175A. To better understand this point, the Committee may in a sense be analogized to a special committee comprising of parliamentarians constituted, under the law, to make an inquiry or to give relief to the people. Could this special committee be said to enforce the will of the Parliament, or their electorate, over and above their duty of providing justice under the law to which they owe their existence? I do admit that unfortunately some might take it so, but all norms of justice, law and fairness would say that they should act independently , fairly and in accordance with the law which has imposed a duty upon them and not with a free hand to do as they please, acting under the guise of the will of the people. 12. The logical corollary of arguing otherwise would in fact put a very damaging and unfair disqualification clause on all parliamentarians. By an admission that parliamentarians, if tasked with a special duty, under any law, cannot shed their electoral inclinatio ns could be a basis for their disqualification under' scrctv laW. We felt that the learned AAG need not have put the matter in this manner , conveying to us a sense of essential, eternal and assertive political agenda in the w performance of, a solemn Constitutional duty . 13. We now turn tOjthe facts of the case. In the case of Lahore High Court, the Hon'ble Chief Justice of the High Court initiated and sent nominations to the Chairman of the Commission for convening a-meeting of the Commission. The Hon'ble Chief Justice of Pakistan, Chairman of the Commission, called a meeting of the Commission which was held on Janua ry 22, 2011. All the members duly attended the Said meeting. It is necessary to reproduce paragraph No. 2 of the minutes of the meeting in order to appreciate the issues at hand. It stated as follows:- "2. The Chairman requested the Chief Justice, Lahore High Court to brief the membefe of the Commission about the nominations initiated bv him. The Chief Justice, Lahore High Court stated that he had recommended two persons for confirmation, namely Mr. Justice Asad Munir and Mr. Justice Ch. Muhammad Tariq (Sr. No.*1 and 13) who are going to retire on attaining the age of superannuation before the end of the year 2011 while the Additional Judges at serial Nos. 3, 5, 7, 14, 16, 18, 19, 21, 33 & 34 above have been recommended to be dropped. For rest of the Additional Judges, he has recommended that their tenure may be extended for a period of one year". ' (The underlining is ours) 14. The Commission discussed the matters in detail. The findings of the Commission are contained in paragraph 3, relevant portions of which are also reproduced here:-
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"3. The Commission had in-deoth discussions about their professional caliber , legal acumen, judicial skills Quality and quantum of judgments, commitment/ devotion to duty, efforts made for expeditious disposal of cases, number of feserved/oendina judgments, and c also examined their antecedents and decided as under:- . A. ..................... B. The Additional Judges at serial Nos. 2,- 4, 6, 8 to 12, 15, 17, 20 and 22 to 32 require further grooming/improvement, therefore, their tenure may be extended for a period of one year with effect from the date their present tenure expires . C. The tenure of the Additional Judges at serial Nos. 1 and 13 be extended from the date of expiry of their present tenure till the date of their superannuation". (The underlining is ours) 15. The Secretary of the Judicial Commission forwarded the unanimous nominations of the Commission to the Parliamentary Committee, in accordance with Article 175A(8) thereof, through letter dated 22-1-201 1, which also contained the nominations of the four Judges under discussion . It must be stressed here that the Chief Justice of the Lahore High Court had also recommended these four Judges for extension while completing the PrO'forma discussed below , and had not at all made any recommendations for their names to be dropped; and after making various observations in different columns of the "proforma", required to be prepared for the initiation of this process, the Hon'ble Chief Justice of the Lahore High Court still decided to recommend them for an extension as per his noting at the end of the "proforma". 16. After receiving the nominations for extension of tenure of the Additional Judges of the Lahore High Court, the meeting Of Parliamentary Committee was held on 2nd of February , 2011. The Committee confirmed all other nominations of the Commission except for the four Judges namely Mr. Mamoon Rashid Sheikh, J., Mr. Muhammad Farrukh Irfan Khan, J., Mr. Syed Mazahar Ali Akbar Naqvi, J. And Mr. Muhammad Yawar Ali, J. Paragraphs 4 and 5 of the minutes of the afore-mentioned meeting contained the reasons for their refusal to confirm the nominations, as conveyed to the Judicial Commission of Pakistan by the Principal Secretary to the Prime Minister through letter dated 17-2-201 1. In the case of Mamoon Rashid Sheikh, J., the Committee reasoned that the views of the Chief Justice of the High Court contained in the columns of "General Reputation in Public, bench and bar", "Disposition of quick disposal" and "Outlook" of "PROFORMA FOR INITIA TION OF NOMINA TION FOR APPOINTME NT AS JUDGE OF THE LAHORE HIGH COUR T. LAHORE" were material and therefore his proposal for extension was not justified. In the case of Muhammad Farrukh Irfan Khan, J., the Committee reasoned that the views of the Chief Justice of the High Court contained in the columns of "General Reputation in Public, bench and bar", "Disposition of quick disposal" and "knowledge of laws" of the same proforma were also material and therefore his proposal for extension was also not' justified. For similar reasons, the Committee further rejected the proposals of the Commission in relation to Syed Mazahar Ali Akbar Naqvi, J, and Muhammad Yawar Ali, J. 17. In the case of the High Court of Sindh, the Hon'ble Chief Justice of the High Court initiated and sent the nominations to the Chairman of the Commission for convening a meeting of the Commission in terms of Rule 3(2) of the Judicial Commission of Pakistan Rules, 2010. The Hon'ble Chief Justice of Pakistan/Chairman of the Commission called a meeting of the Judicial Commission of Pakistan which was held on February 19, 2011. All the members duly attended the said meeting. It is necessary to reproduce paragraph No. 2 of the minutes of the meeting in order to appreciate the issues at hand:- "2. The Chairman requested the Chief Justice, High Court of Sindh to brief the members of the Commission about the nominations initiated bv him. The Chief Justice, High Court of Sindh stated based on their performance and behaviour/conduct he has duly recommended the Additional Judges at serial Nos. 3, 4, 7i & 9 for extension in their tenure whereas the Additional Judges at serial Nos. 1, 2, 5, 6 and 8 are to be dropped". (The underlining is ours) 18. The Commission discussed the matters in detail. The findings of the Commission are contained in
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paragraph 3, .Relevant portions of which are also reproduced here:- "3. The Commission had in-deoth discu ssions about Drofessional caliber , leaal acumen, judicial skills, aualitv and auantum of iudaments. Commitment/devotion to dutv. Efforts made for expeditious disposal of cases. Number of reserved/Dendina iudaments of each of the aforesaid Additional Judaes. And also examined their antecedents. As regards Additional Judges at serial Nos. 6 and 8, the members of the Commission observed that they are professionally competent, therefore, their names may also be recommended for extension. As regards their conduct/behaviour , reported in the performa, it was observed that given their capabilities and potential to prove good Judges. They would be able to overcome such shortcomings with proper coaching and guidance to be provided to them by the Hon'ble Chief Justice/senior Judges of the High Court of Sindh . The Commission therefore, unanimously decided as under:- A. v The Additional Judges at serial Nos. 1, 2 and 5 are dropped as their performance has not been found up to the mark together with their other antecedents and as such their cases are not recommended for confirmation or extension. B. The Additional Judges at serial Nos. 3, 4, 6 to 9 have been found efficient and competent but require further grooming/improvement, therefore, it is recommended that their tenure be extended for a period of one year with ef fect from 18.2.201 1". (The underlining is ours). 19. The Secretary of the Judicial Commission forwarded the unanimous nominations of the Judicial Commission to the Parliamentary Committee through letter dated 19.2.201 1, which also contained the nominations of the two Judges under discussion namely Mr. Muhammad Tasnim, J. And Mr. Salman Hamid, J. After receiving the nominations for an extension of tenure of the Additional Judges of Lahore High Court the meeting of Parliamentary Committee was held on 22nd of February , 2011. The Parliamentary Committee confirmed all other nominations of the Commission except for the aforesaid two Judges. The paragraphs 4 and 5 of the minutes contained the reasoning for this^refusal, as conveyed to the Judicial Commission of Pakistan by Acting Principal Secretary to the Prime Minister through letter dated 24.2.201 1. In case of Muhammad Tasnim, J., the Committee reasoned that the views of the Chief Justice of the High Court contained in the columns of "General Reputation in Public, bench and bar" and column of "General Remarks" of the "PROFORMA FOR INITIA TION OF NOMINA TION FOR APPOINTME NT JUDGE OF THE HIGH COUR T OF SINDH. KARACHI" were material and therefore h s pi Dposal for extension was not justified. Similarly , in the case of Salman Hamid, J., the Committee reasoned that the views of the Chief Justice of the High Court of Sindh contained in the columns of "General Reputation in Public, bench and bar", and column of "General Remarks" of the same "PROFORMA", were material and therefore his proposal for extension was also not justified. * 20. After having considered the facts of this case', wa must now advert to the most important question raised before us. Whether the Committee has the power to reject the approved nominations of the Judicial Commission? Or alternatively , does the Committee have unbridled and arbitrary power to review the decisions of the Commission? It has been urged before us that while coming to the conc lusions, which are the bone of contention in this case, the reasoning adopted by the Committee was irrelevant, unjustified and improper under the law; therefore, it is without legal force or Constitutional sanctity . We agree. The Committee ignored its own Constitutional boundaries and by doing so stepped over the rightful Constitutional jurisdiction of the Commission. 21. It is clear from a preliminary reading of the minutes of the afore-mentioned meetings that the entire
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reasoning of the Committee is focused on no material other than that which had already been thrashed out and discussed in-depth , by the Judicial' Commission. The Committee instead of giving its own reasons for not confirming the nominations, merely opted to usurp the territory reserved for the Commission by the Constitution; and in doing so they again passed judgment on the professional caliber , legal acumen, judicial skill and quality and the antecedents of the Judicial nominees. As noted above, this exercise had already been done by the Commission. The Parliamentary Committee neither had the expertise nor the Constitutional mandate to reverse the reasoning and findings of the Commission on these grounds; doing so would negate the purpose for creating a Commission as envisaged in Article 175A. 22. The constitution of the Judicial Commission itself and the members comprising five sitting Judges of the Supreme Court, one former Judge of Supreme Court, the Chief Justice and the most senior Judge of the High Court, Federal Minister for Law and Attorney General of Pakistan, Law minister of the concerned province and two senior advocates/members of the Bar, gives us a clear insight into the reasons for the creation of the Commission. It comprises of people having an immense background and statu re in the field of law and the judicial system. The purpose then was that the discretion in making judicial appointments should not be the forte of one man, as in the old system, but should rather be devol ved to a body comprised of people who could be trusted to make a just evaluation on the professional caliber , legal acumen, judicial skill and all other related criteria relevant for the appointment of a person as a Judge of the High Court. We are thus unable to see how the technical expertise, judged by a Commission comprising of people having spent decades in the legal field, could be better judged, or worse, reversed by the Parliamentary Committee. If this was intended by the legislature then there was simply no need to even constitute a Judicial Commission. 23. Another issue which is relevant to note is that Article 175A itself has not provided for the Chief Justice of a High Court to have any special role in the appointment process. I^e is just another member of the Judicial Commission and by the above-said rules he has merely been provided the role to initiate the nominations. His duty is to initiate and send the nominations to the Chairman of the Judicial Commission. This act, of initiating and sending nominations, cannot be taken to be the "recommendation" itself, but is rather to be considered as an act of mere procedure. This is so because the whole object of the new legislation's to take away the powers of one person and make the process a collective effort. So, for instance, if the Rules are changed by the Commission and any other member of the Commission is given the task of setting the process of the Judicial Commission in motion, then that would not give this member a special place which is not envisaged for any other member in Article 175A. Therefor e, even if a Chief Justice of the High Court is of the view that certain persons are not fit to he Judges of the High Court, it is possible that the Judicial Commission, by a majority , may come to the conclusion that they are and thus make such recommendation to the Committee. These recommendations would be valid and in accordance with the letter and spirit of Article 175A. 24. Given this discussion, we do not understand how the Committee could consider that its function was to redo the entire exercise conducted by the Commission while determining the professional caliber , judicial skill, legal acumen and personal conduct, required as a Judge, of the nominees. Moreso, how could they arrive at a conclusion, that the entire exercise of the Commission was flawed, based on the piecemeal views of one member of the Commission? And it might be added here that even these views did not last the Commission passed the nominations unanimously . Let us assume, however , that the unanimity present in these decisions of the Commission was not there. Let us further assume, for the sake of argumen t, that the Attornay General of Pakistan objected to a particular nomination and the Judicial Commission still, by a majority of its total membership, as mandated by clause (8) of Article 175A, decided to nominate that person to the Parliamentary Committee. Could the Parliamentary Committee reject this nomination simply on the reason that they trust the
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evaluation of the Attorney General of Pakistan and not of the other Judges? We strongly believe that such is neither the function of the Parliamentary Committee, nor its mandate under Article 175A, and would amount to an incorrect and unconstitutional decision. 25. The technical evaluation of a person's caliber as Judge has to, be made by the Commission, and once evaluated the recommendations of the Commission are to be looked as one The views of the individual members of the Commission thus no more exist before the Con ittee. What the Commission has already assessed and held cannot be overturned on the basis of a dissenting view , note or discussion of any individual member . If this was allowed, it would render the whole working of the Judicial Commission as futile afid make it nugatory under the Con? :ution. Doing so would be akin to refusing to recognize a resolution of the Parliament, or any law passed by it, on the basis of the minority view in the House. Such reasoning will lead to a deliberate breakdown of our Constitutional mechanisms and procedures. 26. Therefore, the Parliamentary Committee, on receipt of a nomination from the Commission, can either confirm the nominee by…
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