Judges appointment process challenged | The Lahore High Court upheld the constitutionality of Rule 3(2) of the Judicial Commission of Pakistan Rules, 2010.
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| The Lahore High Court upheld the constitutionality of Rule 3(2) of the Judicial Commission of Pakistan Rules, 2010, affirming that the judicial appointment process does not require written exams or interviews. |
2۔ مقدمے کا پس منظر
ا) اپیل کنندہ نے جوڈیشل کمیشن آف پاکستان رولز 2010 کے رول 3(2) کو آئین سے متصادم قرار دیا۔
ب) مؤقف یہ تھا کہ ہائیکورٹ ججز کی تقرری درخواستیں طلب کیے بغیر، تحریری امتحان اور انٹرویو کے بغیر کرنا غیر آئینی ہے۔
ج) یہ دعویٰ کیا گیا کہ ایسا طریقہ کار من مانا، امتیازی اور اقربا پروری پر مبنی ہے۔
3۔ اپیل کنندہ کے دلائل
ا) آرٹیکل 193 کے تحت ہر اہل اٹارنی ہائیکورٹ جج بننے کا اہل ہے، لہٰذا سب کو برابر موقع ملنا چاہیے۔
ب) بغیر امتحان اور انٹرویو تقرریاں آرٹیکل 25 (مساوات) کی خلاف ورزی ہیں۔
ج) جوڈیشل کمیشن رولز میں CSS طرز کا طریقہ کار ہونا چاہیے۔
4۔ متعلقہ آئینی دفعات
ا) آرٹیکل 175-A — ججز کی تقرری کا مکمل آئینی طریقہ کار فراہم کرتا ہے۔
ب) آرٹیکل 193 — ہائیکورٹ جج کے لیے اہلیت کے تقاضے بیان کرتا ہے۔
ج) اٹھارویں ترمیم کے بعد تقرری کا پورا اختیار جوڈیشل کمیشن اور پارلیمانی کمیٹی کو دیا گیا۔
5۔ جوڈیشل کمیشن رولز 2010
ا) رول 3(2) کے تحت ہائیکورٹ ججز کے لیے نامزدگی چیف جسٹس متعلقہ ہائیکورٹ کرتے ہیں۔
ب) رولز میں تحریری امتحان یا انٹرویو کی کوئی شرط شامل نہیں۔
ج) کمیشن کو آئین کے تحت طریقہ کار بنانے کا اختیار حاصل ہے۔
6۔ عدالت کے اہم مشاہدات
ا) آرٹیکل 175-A ایک مکمل آئینی اسکیم فراہم کرتا ہے۔
ب) آئین میں کہیں بھی تحریری امتحان یا انٹرویو کا ذکر موجود نہیں۔
ج) آئین سے ہٹ کر کوئی نیا طریقہ کار مسلط کرنا آئینی مداخلت کے مترادف ہے۔
7۔ رول 3(2) کی آئینی حیثیت
ا) اپیل کنندہ یہ ثابت کرنے میں ناکام رہا کہ رول 3(2) آئین سے متصادم ہے۔
ب) جو طریقہ کار اپیل کنندہ تجویز کر رہا تھا وہ آئین میں سرے سے موجود ہی نہیں۔
ج) آئین کے خلاف کوئی شق ثابت نہ ہونے پر رول 3(2) کو درست قرار دیا گیا۔
8۔ عدالت کا حتمی فیصلہ
ا) سنگل جج کا فیصلہ درست قرار دیا گیا۔
ب) انٹرا کورٹ اپیل میں کوئی قانونی سقم ثابت نہ ہو سکا۔
ج) انٹرا کورٹ اپیل خارج کر دی گئی۔
9۔ قانونی اصول (Ratio Decidendi)
ا) ہائیکورٹ ججز کی تقرری صرف آرٹیکل 175-A کے مطابق ہو سکتی ہے۔
ب) تحریری امتحان یا انٹرویو آئینی تقاضا نہیں۔
ج) عدالتیں آئین سے ہٹ کر نیا تقرری نظام متعارف نہیں کرا سکتیں۔
Must read judgement
P L D 2021 Lahore 605
Before Abid Aziz Sheikh and Mirza Viqas Rauf, JJ
GHULAM YASIN BHATTI---Appellant
Versus
FEDERATION OF PAKISTAN, MINISTRY OF LAW AND JUSTICE,
PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, ISLAMABAD and another---
Respondents
Intra Court Appeal No.23200 of 2021 in Writ Petition No. 5366 of 2019, decided on 7th
April, 2021.
Constitution of Pakistan---
----Arts. 175-A & 193---Judicial Commission Rules, 2010, Rr. 3 & 5---Appointment of High
Court Judges---Procedure---Contention of appellant was that appointments of High Court
Judges were to be made by calling for applications, followed by written tests and then
interviews---Validity---Process or mode suggested by appellant for filling up vacancy of a
Judge in superior judiciary was alien to Art. 175-A of the Constitution---Any procedure
which was not recognized by Art. 175-A of the Constitution, could not be pressed into
service for such purpose, as the same would amount to intrude Constitutional mandate---
Division Bench of High Court declined to interfere in judgment passed by Single Judge in
Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.
Ghulam Yasin Bhatti -- Appellant in person.
ORDER
The appellant considering Rule 3(2) of the Judicial Commission of Pakistan Rules,
2010 as ultra vires to the provisions of the Constitution of the Islamic Republic of Pakistan,
1973, filed constitutional petition (Writ Petition No.5366 of 2019), with the following
prayer:-
"It is, therefore, respectfully prayed that Rule 3(2) of the Judicial Commission Rules,
2010 which provides for nomination to the posts of judges of the High Courts is
violative of Articles 25, 2-A, 193(2)(a) and all appointments made without calling for
applications, without written examination and interview is wholly arbitrary and
nepotistic based on personal likes and dislikes of the Chief Justice are void in view of
Article 8 of the Constitution being inconsistent with Fundamental Right enshrined in
Article 25 of the Constitution.
It is further prayed that all appointments to be made in future be not made without
inviting applications, written examination and interview and as they do in Central
Superior Services examinations."
2. The constitutional petition was placed before the learned Single Judge in Chamber,
who proceeded to dismiss the same through order dated 18.02.2021, which is now assailed in
the instant appeal under Section 3 of the Law Reforms Ordinance, 1972.
3. It is contended that Rule 3(2) of the Judicial Commission of Pakistan Rules, 2010 is
violative of Articles 2-A, 25 and 193(2)(a) of the Constitution of the Islamic Republic of
Pakistan, 1973 (hereinafter referred as "Constitution"). Added that in terms of Article 193 of
the "Constitution", every Advocate of a High Court is eligible to become Judge of the High
Court, if he has practiced for a period not less than ten years. It is contended that all
appointments made without calling for applications, written examination and interview are
wholly arbitrary and void in terms of Article 8 of the "Constitution". It is submitted that the
Rules ought to provide a mechanism for inviting applications from the contesting candidates
and the appointments should be made on the basis of written examination and interview.
4. After having heard the appellant, we have perused the record.
5. Article 175A of the "Constitution" provides a mechanism for appointment of Judges
to the Supreme Court, High Courts and the Federal Shariat Court. This provision was
inserted in the "Constitution" through Eighteenth Amendment Act (X of 2010). Prior to the
insertion of Article 175A in the "Constitution", the appointment of High Court Judges was to
be made in terms of Article 193 of the "Constitution", which reads as under:-
"193. Appointment of High Court Judges.---(1) 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 Chief Justice of the
High Court.
6. In order to streamline and to make the process of appointments of Judges in the
superior judiciary more transparent, the Legislature through Eighteenth Amendment brought
Article 175A in the "Constitution", whereby Judicial Commission of Pakistan and
Parliamentary Committee has been created. Article 175A of the "Constitution" is reproduced
below for ready reference and convenience:-
"(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article
referred to as the Commission, for appointment of Judges of the Supreme Court, High
Courts and the Federal Shariat Court, as hereinafter provided.
(2) For appointment of Judges of the Supreme Court, the Commission shall consist
of-
(i) Chief Justice of Pakistan;
Chairman
(ii) [four] most senior Judges of the SupremeMembers
Court;
(iii) a former Chief Justice or a former Judge
Member
of the Supreme Court of Pakistan to be
nominated by the Chief Justice of Pakistan,
in consultation with the [four] member
Judges, for a term of two years;
(iv) Federal Minister for Law and Justice; Member
(v) Attorney-General for Pakistan; and
Member
(vi) a Senior Advocate of the Supreme Court
Member
of Pakistan nominated by the Pakistan Bar
Council for a term of two years.
(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall
appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.
(4) The Commission may make rules regulating its procedure.
(5) For appointment of Judges of a High Court, the Commission in clause (2) shall
also include the following, namely:-
(i) Chief Justice of the High Court to which Member
the appointment is being made;
(ii) the most senior Judge of that High Court;Member
(iii) Provincial Minister for Law; and
Member
(iv) an advocate having not less than
Member
fifteen years practice in the High
Court to be nominated by the
concerned Bar Council for a term
of two years:]
[Provided that for appointment of the Chief Justice of a High Court, the most senior
Judge mentioned in paragraph (ii) shall not be member of the Commission:
Provided further that if for any reason the Chief Justice of a High Court is not
available, he shall be substituted by a former Chief Justice or former Judge of that
Court, to be nominated by the Chief Justice of Pakistan in consultation with the four
member Judges of the Commission mentioned in paragraph (ii) of clause (2).]
(6) For appointment of Judges of the Islamabad High Court, the Commission in clause
(2) shall also include the following, namely:-
(i) Chief Justice of the Islamabad High Court; and Member
(ii) the most senior Judge of that High Court: Member
Provided that for initial appointment of the [Chief Justice and the] Judges of the
Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also
be members of the Commission:
Provided further that subject to the foregoing proviso, in case of appointment of Chief
Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis,
apply.
(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause
(2) shall also include the Chief Justice of the Federal Shariat Court and the most
senior Judge of that Court as its members:
Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos,
to clause (5) shall, mutatis mutandis, apply.
(8) The Commission by majority of its total membership shall nominate to the
Parliamentary Committee one person, for each vacancy of a Judge in the Supreme
Court, a High Court or the Federal Shariat Court, as the case may be.
(9) The Parliamentary Committee, hereinafter in this Article referred to as the
Committee, shall consist of the following eight members, namely:-
(i) four members from the Senate; and
(ii) four members from the National Assembly
[Provided that when the National Assembly is dissolved, the total membership of the
Parliamentary Committee shall consist of the members from the Senate only
mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis,
apply.
(10) Out of the eight members of the Committee, four shall be from the Treasury
Benches, two from each House and four from the Opposition Benches, two from each
House. The nomination of members from the Treasury Benches shall be made by the
Leader of the House and from the Opposition Benches by the Leader of the
Opposition.
(11) Secretary, Senate shall act as the Secretary of the Committee.
(12) The Committee on receipt of a nomination from the Commission may confirm
the nominee by majority of its total membership within fourteen days, failing which
the nomination shall be deemed to have been confirmed:
[Provided that the Committee, for reasons to be recorded, may not confirm the
nomination by three-fourth majority of its total membership within the said period:]
[Provided further that if a nomination is not confirmed by the Committee it shall
forward its decision with reasons so recorded to the Commission through the Prime
Minister:
Provided further that if a nomination is not confirmed, the Commission shall send
another nomination.
(13) The Committee shall send the name of the nominee confirmed by it or deemed to
have been confirmed to the Prime Minister who shall forward the same to the
President for appointment.
(14) No action or decision taken by the Commission or a Committee shall be invalid
or called in question only on the ground of the existence of a vacancy therein or of the
absence of any member from any meeting thereof.
(15) The meetings of the Committee shall be held in camera and the record of its
proceedings shall be maintained.
(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.
[(17)] The Committee may make rules for regulating its procedure
With the insertion of Article 175A ibid, a corresponding amendment to this effect was
also made in Article 193 of the "Constitution", which now reads as under:-
"193. Appointment of High Court Judges.---[(1) The Chief Justice and each of other
Judges of a High Court shall be appointed by the President in accordance with Article
175A.]
(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of
Pakistan, is not less than [forty-five] years of age, and -
(a) he has for a period of, or for periods aggregating, not less than ten years been an
advocate of a High Court (including a High Court which existed in Pakistan at any
time before the commencing day) or
(b) he is, and has for a period of not less than ten years been, a member of a civil
service prescribed by law for the purposes of this paragraph, and has, for a period of
not less than three years, served as or exercised the functions of a District Judge in
Pakistan; or
(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.
[Explanation.---In computing the period during which a person has been an advocate
of a High Court or held judicial office, there shall be included any period during
which he has held judicial office after he became an advocate or, as the case may be,
the period during which he has been an advocate after having held judicial office.]
7. In order to regulate its procedure, the Judicial Commission made the Judicial
Commission of Pakistan Rules, 2010 (hereinafter referred as "Rules 2010") in exercise of
powers conferred by Clause (4) of Article 175A of the "Constitution". Rule 3 of the "Rules
2010" provides the procedure for nominations for appointments in the following manner:-
"3. Nominations for Appointments.---(1) For each anticipated or actual vacancy of a
Judge in the Supreme Court or the Chief Justice of Federal Shariat Court or the Chief
Justice of a High Court, the Chief Justice of Pakistan shall initiate nominations in the
Commission for appointment against such vacancy.
(2) For each anticipated or actual vacancy of a Judge in the Federal Shariat Court or
Judge in the High Court, the Chief Justice of the respective Court shall initiate and
send nomination for appointment against such vacancy to the Chairman for convening
meeting of the Commission."
In addition to the above, Rule 5 of the "Rules 2010" provides the manner of
proceedings of the Commission, which reads as under:-
"5. Proceedings of the Commission.---(1) Whenever a nomination is received under
Rule 3, the Chairman shall call a meeting of the Commission on a date, time and
place determined by him and notified by the Secretary to each member.
(2) The Commission may call for any information or record required by it from any
person or authority for the purposes of carrying out its functions.
(3) The Secretary shall forward the nominations made by the Commission to the
Secretary of the Parliamentary Committee constituted under clause (9) of Article
175A of the Constitution.
(4) The proceedings of the Commission shall be held in camera. A record of the
proceedings shall be prepared and maintained by the Secretary duly certified by the
Chairman under his hand".
8. It is though one of the contentions of the appellant that Rule 3(2) is ultra vires to the
"Constitution", but despite all his earnest efforts, he has failed to substantiate his argument to
this effect. Sub-clause (8) of Article 175A of the "Constitution" prescribes that the
Commission by majority of its total membership shall nominate to the Parliamentary
Committee one person for each vacancy of a Judge in the superior judiciary; whereafter the
Parliamentary Committee shall also delve and ponder upon the issue in terms of sub-clauses
(12) and (13) of Article 175A of the "Constitution".
9. The process or mode suggested by the appellant for filling up the vacancy of a Judge
in the superior judiciary is clearly alien to Article 175A of the "Constitution". Any
procedure, which is not recognized by Article 175A of the "Constitution", cannot be pressed
into service for the said purpose, as it will amount to intrude the constitutional mandate.
10. We thus see no justifiable reason to interfere with the order passed by the learned
Single Judge in Chamber resulting into dismissal of the constitutional petition. Resultantly,
this appeal fails and is dismissed in limine.
MH/G-15/L Appeal dismissed.