12/12/2024, 10:10 P L D 2011 Supreme Court 407

P L D 2011 Supreme Court 407

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Khilji Arif Hussain
and Tariq Parvez, JJ

MUNIR HUSSAIN BHATTI, ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

Constitutional Petitions Nos.10 and 18 of 2011, decided on 4th March, 2011.

Per Mahmood Akhtar Shahid Siddiqui, J; Jawwad S. Khawaja, Khilji Arif Hussain and
Tariq Parvez, JJ, agreeing--

(a) Constitution of Pakistan---

----Arts. 175A, 4, 69 & 184(3)---Constitution of Parliamentary Committee under Art.175A

of the Constitution---Nature and Scope of functions of the Committee---Judicial review---
Scope---Parliamentary Committee constituted under Art.175A of the Constitution could not
be considered as a part of the legislature---Said Committee was not to have any connection
or even semblance of relevance to the legislature or any form of parliamentary attribute---
Parliamentary Committee owed its existence to Art.175A of the Constitution and not to the
provisions relating to the Legislature or the Executive in the Constitution and was an
Authority constituted under Art.175A of the Constitution---Any Authority created under a
constitutional provision was bound to act within its specified mandate as per Art. 4 of the
Constitution and there was no immunity from Judicial scrutiny reserved for the Committee
under the Constitution and Art. 69 of the Constitution had no application---Principles.

"Parliamentary Committee", constituted under Article, 175A of the Constitution cannot even
remotely be considered as a part of the legislature nor for that matter, any question relating to
the supremacy of Parliament is involved in this case. The Judicial Commission and the
Parliamentary Committee are two limbs o f one constitutional mechanism created by Article
175A. Both of them owe their existence to Article 175A and not to the provisions relating to
the Legislature or the Executive in the Constitution. As such, they are entirely new authorities
constituted under Article 175A of the Constitution. Any Authority created under a
constitutional provision is bound to act within its' specified mandate as per Article 4 of the
Constitution. There is thus no immunity from judicial scrutiny reserved for the Committee
under the Constitution and Article 69 has no application in the present case.

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
attribute. 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. Thus, its members, even if they
are parliamentarians, are neither required nor permitted to participate in the proceedings of
the Committee in their legislative 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

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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? 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 people.

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 inclinations could be a
basis for their disqualification under such law.?

(b) Constitution of Pakistan---

----Arts.175A & 184(3)---Constitution of `Judicial Commission' and Parliamentary

Committee' under Art.175A of the Constitution---Purpose---Scope---Refusal of Parliamentary
Committee to confirm the nominations made by the Judicial Commission for the extension in
the tenure of Additional Judges of the High Courts---Justiciable---Direction of Art.175A(12)
of the Constitution is that the Parliamentary Committee, on receipt of a nomination from the
Judicial Commission, can either confirm the nominee by a majority of its total membership
within fourteen days, failing which the nomination shall be deemed to have been confirmed,
or reject the nomination on grounds falling within its domain for very strong reasons which
shall be justiciable---In the present case, while coming to the conclusions, the reasoning
adopted by the Committee was irrelevant, unjustified and improper under the law; therefore, it
was without legal force or constitutional sanctity--- Committee had ignored its own
constitutional boundaries and by doing so stepped over the rightful constitutional jurisdiction
of the Commission---Supreme Court, in circumstances, issued directions to the Federation to
notify the appointments on the recommendations received, in accordance with Art.175A of
the Constitution, within a period of fourteen days---Principles.

In the present case while coming to the conclusions, the reasoning adopted by the Committee
was irrelevant, unjustified and improper under the law; therefore, it was without legal force or
constitutional sanctity. The Committee ignored its own constitutional boundaries and by doing
so stepped over the rightful constitutional jurisdiction of the Commission.

The minutes of the meetings showed that the entire reasoning of the Committee was 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 calibre, legal
acumen, judicial skill and quality and the antecedents of the Judicial nominees. 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.?

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

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Bar, gives a clear insight into the reasons for the creation of the Commission. It comprises of
people having an immense background and stature 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 devolved to a body comprised of
people who could be trusted to make a just evaluation on the professional calibre, legal
acumen, judicial skill and all other related criteria relevant for the appointment of a person as
a Judge of the High Court. One was 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.?

Article 175A itself has not provided for the Chief Justice of a High Court to have any special
role in the appointment process. He 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 Art.175A is 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. Therefore, even if a Chief Justice of the High Court is of the view
that certain persons are not fit to be 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.?

The Committee could not consider that its function was to redo the entire exercise conducted
by the Commission while determining the professional calibre, judicial skill, legal acumen
and personal conduct, required as a Judge, of the nominees. More so, 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? Even these views did not last the Commission
passed the nominations unanimously. Such was neither the function of the Parliamentary
Committee, nor its mandate under Article 175A, and would amount to an incorrect and
unconstitutional decision.

The technical evaluation of a person's calibre 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
Committee. 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 and make it nugatory
under the Constitution. 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 constitutional mechanisms and procedures.

Therefore, the Parliamentary Committee, on receipt of a nomination from the Commission,

can either confirm the nominee by a majority of its total membership within fourteen days,
failing which the nomination shall be deemed to have been confirmed, or reject the
nomination on grounds falling within its domain for very strong reasons which shall be
justiciable. This is the clear direction of clause (12) of Article 175A.?

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Since in the present case, the Committee had tried to assume the jurisdiction of the
Commission, there was no option but to come to the conclusion that the Committee failed to
perform its functions in terms of clause (12) of Article 175A. The consequence of this failure
has been prescribed by the Constitution itself. The Committee must act within a period of
fourteen 'days of receiving the nominations, "failing which the nomination shall be deemed to
have been confirmed". So, while in any other case of failure to exercise jurisdiction, Supreme
Court might have been required to send the issue back to the authority for consideration in
accordance with law, here the Constitution had left with no such option because of a deeming
provision.?

The mandatory consequence of the deeming clause mentioned above is that the name of the
nominee confirmed by the Committee or "deemed to have been confirmed" shall be
forwarded to the .President for appointment. The effect of a deeming provision was that it
requires the court to believe that something exists and has happened, though it may neither
exist nor may have occurred in reality. It thus creates a legal fiction.?

Moreover the court, in such cases, is required to see for what purpose this deeming device has
been used by the legislature. In the present case there can be little doubt that the purpose was
the completion of this exercise as early as possible and the Constitutional time period of
fourteen days sheds great light on the matter. Therefore, the failure of the Committee to
perform its functions in accordance with its mandate results in the nomination "deemed to
have been confirmed.

Supreme Court in circumstances, issued direction to the Federation to notify the appointments
on the recommendations received, in accordance with Article 175A, within a period of
fourteen days.?

The principles of law enunciated in earlier judgments such as Al-Jehad Trust's Case (PLD
1996 SC 324), Malik Asad Ali's case (PLD 19-? SC 161 and several others would continue to
apply to the new mechanism with full force. In fact, these principles can be said to be
applicable even more strongly after the introduction of the newly constituted bodies under
Article 175A.?

The recommendations of the Judicial Commission are now on greater footing than the
recommendations of the Chief Justice alone in the earlier system. These cannot be superseded
for any extraneous considerations. Therefore, the Parliamentary Committee cannot simply
brush aside the recommendations of the Commission without its own sound reasons. The
Committee is to confine itself to the purpose for which it has been constituted, which is
evidently the thrashing out of issues not related to the domain of the Commission. The
Committee can, based on factual data and reasons, for instance, declare that a nominee is
corrupt or is affiliated/partial making him a controversial choice, but judging the calibre of a
nominee as a Judge rests with the Commission.?

The Judicial Commission had made recommendations for extension in tenure of Judges of
High Courts. The Parliamentary Committee however, disagreed with the recommendations of
the Judicial Commission and decided not to recommend the names of these Judges for
appointment.?

Supreme Court declared that the decision of the Parliamentary Committee, whereby the
names of the Judges were not confirmed for extension in their tenure, were not in accordance

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with the provisions of the Constitution; as a result of said' decision of the Parliamentary
Committee, Supreme Court directed the Federation to implement the recommendations of the
Judicial Commission in respect of said Judges of the High Courts and to issue notifications
for the appointment of the said Judges in consonance with the recommendations of the
Judicial Commission.?

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Federation of Pakistan v.
Mian Muhammad Nawaz Sharif PLD 2009 SC 644; Malik Asad Ali's case PLD 1998 SC 33
and Al-Jehad Trust's case PLD 1996 SC 324 ref.

(c) Interpretation of Constitution---

----Deeming clause---Mandatory consequence.?

Per Jawwad S. Khawaja, J; Mahmood Akhtar Shahid Siddiqui, J., agreeing--

(d) Constitution of Pakistan---

----Arts. 184(3) & 175A---Constitutional petition before Supreme Court under Art.184(3) of
the Constitution---Maintainability---Jurisdiction of Supreme Court---Scope---Petitions calling
in question refusal of Parliamentary Committee to confirm judicial appointments in High
Courts made by Judicial Commission was a matter of public importance and a fit occasion for
Supreme Court to interpret Art.175A of the Constitution, thereby enabling constitutional
bodies such as the Judicial Commission and the Parliamentary Committee (and their
respective functionaries) to perform their roles in accordance with the Constitution---Such
petitions were eminently suitable for the exercise of jurisdiction under Art.184(3) of the
Constitution---Principles.

In the present case, two specific decisions of the Parliamentary Committee have been assailed
by the petitioners under Art.184(3) of the Constitution. These decisions relate to the refusal of
the Committee to confirm the nominations made by the Commission for the renewal of tenure
of Judges of High Courts.?

A preliminary objection was raised against the maintainability of these petitions, with
contention that the jurisdiction of Supreme Court under the said Article 184(3) of the
Constitution can only be invoked where "a question of public importance with reference to
the enforcement of any of the fundamental rights" is involved and that no such question arises
in these petitions; and the same are, therefore, not maintainable.?

The nominations made by the Judicial Commission and the refusal of the Parliamentary
Committee to confirm the same appeared to have generated considerable public interest,
providing a great deal of material for debate in the public, the media and the legal fraternity.
The Bar Associations of the High Courts in the country also debated the impugned decisions
of the Committee. The Sindh High Court Bar Association, which is itself a petitioner, has
placed on record its resolution "condemning" the action of the Committee. The proceedings in
these petitions and the short order have also made headlines in the print and the electronic
media. More so, critical comments on the said order have been carried prominently in the
media. Contention that no question of public importance had arisen in the matter, had no
substance in circumstances.?

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Article 184(3) of the Constitution empowers Supreme Court to exercise jurisdiction

thereunder whenever the Court considers a matter to: (i) be of public importance and (ii) that
it pertains to the enforcement of fundamental rights. The determination on both these counts
is to be made by Supreme Court itself, keeping the facts of the case in mind. Only an
independent Judiciary can enforce the fundamental rights enshrined in the Constitution.
Without an independent mechanism for enforcing fundamental rights, the contents of Chapter
1 (Fundamental Rights) of Part-II of the Constitution would become meaningless.
?
In determining as to whether question of public importance had arisen in the matter the Court
is not to be swayed by expressions of public sentiment nor is it to conduct an opinion poll to
determine if the public has any interest in an issue being agitated before the Court under
Article 184(3) of the Constitution. Instead, a whole range of factors need to be kept in mind,
which have, over the years, been expounded in numerous precedents of Supreme Court. It is
important to keep these precedents in view because, it is through the use of precedent that the
contours of the law are constantly defined. The Constitution, through Article 189, recognizes
the significance of judicial precedent in the acknowledged tradition of a Common Law
jurisdiction. "Overt expression of public interest" or "street demonstrations and vigorous
media debate" are not necessary factors for the "exercise of jurisdiction over a case under the
Article.

Therefore, questions which require the interpretation of newly added provisions (Art.175A) in
the Constitution relating to judicial appointments would quite clearly be matters of public
importance.?

The fact that independence of the Judiciary is a matter of public importance has also been
firmly established in our jurisprudence. The Judiciary was... an affair of the public; any
offence to its independence would be an encroachment on the right of the people to access
justice and finally that the security of service and of the tenure of the Judges was critical for
the said independence.?

Matters of public importance may be deduced on a case-by-case basis. However, even on a

case-by-case basis, some general principles still emerge. Matters relating to the Judiciary have
regularly been held to be of public importance. An issue that could considerably damage `the
very fabric of independence and separation of Judiciary' amounted to a matter of great public
importance. Questions of interpretation of the Articles of Constitution relating to the Judiciary
were undoubtedly, a matter of pubic importance.?

Precedents which examine and pronounce upon the scope of the Article 184(3) of the
Constitution remain relevant. Therefore, in line with Article 189 of the Constitution, the
principles of law enunciated by Supreme Court in respect of Article 184 (3) of the
Constitution provide the surest guidance that present petitions raise issues which must be
decided by Supreme Court in the exercise of its jurisdiction under the said Article. Thus,
under Art 184(3) of the Constitution, not only is Supreme Court possessed with the power to
adjudicate present matter, but it must, as a matter of duty, exercise jurisdiction over the case.?

Judicial appointments in the High Courts, have been so far called in question in petitions. This
is, therefore, a fit occasion for Supreme Court to interpret Article 175A of the Constitution, as
amended; thereby enabling constitutional bodies such as the Judicial Commission and the
Parliamentary Committee (and, their respective functionaries) to perform their roles in
accordance with the Constitution.?

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These petitions are eminently suitable for the exercise of jurisdiction under Article 184 (3) of
the Constitution.?

Suo Motu Case No.10 of 2009 (2010 SCMR 885); Al-Jehad Trust through Raseesul
Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD
1996 SC 324; Chief Justice of Pakistan v. President of Pakistan, PLD 2010 SC 61; Watan
Party v. Federation of Pakistan and others PLD 2006 SC 697; Malik Asad Ali and others v.
Federation of Pakistan and others PLD 1998 SC 161; Sindh High Court Bar Association and
another v. Federation of Pakinian and others (PLD 2009 SC 879; 1185; Shahida Zahir Abbasi
v. President of Pakistan, PLD 1996 SC 632; Sharaf Faridi v. Federation of Pakistan PLD 1989
Kar. 404; Public Interest Litigation in Pakistan (Alam Rafay; Ed. Minshki, Alam & ""Raza,
Platinum and Pakistan Law House 2000) and Abdul Matin Khan v. N.-W.F.P., PLD 1993
SC'187 ref.

Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2008 SC
30; Munir Bhatti v. Federation of Pakistan (Constitutional 'Petition No. 10. of 2011); Manzoor
Elahi v. Federation of Pakistan PLD 1915 SC 66; Shahida Zaheer Abbasi v. Federation of
Pakistan PLD 1996 SC 632; Syed Zulfiqar Mehdi v. PIAC (1998 SCMR 793; Watan Party v.
President of Pakistan PLD 2003 SC 74; Mian Muhammad Shahbaz Sharif v. Federation of
Pakistan PLD 2004 SC 583 and APNS v. Federation of Pakistan PLD 2004 SC 600
distinguished.

Per Mahmood Akhtar Shahid Siddiqui, J. agreeing with Jawwad S. Khawaja, J.--

"I am in full agreement with his reasoning and conclusion on the question of maintainability
and the other issues raised in these petitions."?

Per Jawwad S. Khawaja J. Mahmood Akhtar Shahid Siddiqui J. agr e e i n g . - -

(e) Interpretation of Constitution---

----Constitution has to be read holistically as an organic document---Rationale---Word

`organic' in context of interpretation of Constitution---Connotation.?

Masnavi Maulana Jalaluddin Rumi; Mirrors by Eduardo Galeano; Tribe, Lawerence H; Dorf,
Micheal C., Chap. 1; European Civil Law Tradition by Dr. Conrad and Indian Yearbook of
International Affairs, 1967, p.375 ref.

(f) Constitution of Pakistan---

----Art.175A---Interpretation of Art.175A of the Constitution---Article 175A of the

Constitution has to be read as part of, the larger constitutional scheme and not as an insular
"bunch of separate clauses and provisions" or as a self-contained island within the
Constitution, unconnected with its other parts.?

Masnavi Maulana Jalaluddin Rumi; Mirrors by Eduardo Galeano; Tribe, Lawerence H; Dorf,
Micheal C., Chap. 1; European Civil Law Tradition by Dr. Conrad and Indian Yearbook of
International Affairs, 1967, p.375 ref.

(g) Constitution of Pakistan---

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----Arts. 175A & 184(3)---Decisions of Parliamentary Committee constituted under Art.175A

of the Constitution---Justiciability---Scope---Intention of Parliament was not to oust the
jurisdiction of Supreme Court to review the decisions of the Parliamentary Committee-
Principles.

The repeatedly emphasized imperative of maintaining a record both of the proceedings of the
Committee and of the "reasons" behind its decisions, in Article 175A of the Constitution very
strongly suggests that the Committee's decisions were intended to be subject to judicial
review. Otherwise, if the Committee's decisions were meant to be non-justiciable, and beyond
judicial scrutiny, the insistence on recording reasons would not make much sense. It is an
established rule of interpretation that Parliament does not waste words and redundancy should
not be imputed to it. This principle would apply with even greater force to the Constitution
the supreme law of the land. It will be seen that even an insular reading of this Article, leaves
the impression that the decisions of the Committee are subject to review.

It was argued by counsel for the Federation that Supreme Court should infer that through the
19th Constitutional Amendment, it was intended by Parliament that decisions taken by the
Parliamentary Committee should not be subject to judicial review. Such inference was sought
on the basis that the suggestion in the order of the larger Bench of the Supreme Court dated
21-10-2010 (Nadeem Ahmad and others v. Federation of Pakistan and others PLD 2010 SC
1165) as to justiciability was not incorporated in the amended Article. The argument of the
counsel based on implication and not on the wording of Article 175A as amended, is contrary
to the jurisprudence that has evolved in the jurisdiction of Supreme Court. Furthermore, the
argument ignores the legal precept that the Constitution has to be construed as an organic
whole.?

Court's jurisdiction may only be ousted through express words in a legal text. Ouster of
jurisdiction should not be inferred. Ouster of jurisdiction is to be seen from express words
which should not be implied except where absolutely necessary. Unless very explicit words
are used in a legal provision to oust the jurisdiction of the Court, such an intention would not
be normally imputed to the legislature. A strong leaning now exists against construing a
statute so as to oust or restrict the jurisdiction of the superior Courts. This rule is applicable
with even more rigour while interpreting constitutional provisions. There is need for greater
strictness in a case where the bar to the jurisdiction of the courts relates to the interpretation of
the provisions of the Constitution, a Constitution which by their oaths the Judges are bound to
protect and preserve.?

Constitution of Pakistan is no stranger to ouster clauses. There are provisions in the

Constitution which, through express wording purport to exclude the jurisdiction of the Court
in certain matters.?

Even where such express language has been used in the Constitution, there is consistent
precedent to demonstrate that such provisions have not been construed as providing for an
absolute ouster of the Court's jurisdiction.

Supreme Court has exercised jurisdiction (though for limited purposes) notwithstanding the
language purporting to oust its jurisdiction.?

On a review of the Constitution and the ouster clauses provided for in the various Articles of
the Constitution and applying the ratio of the precedents it can be concluded that the absence
of similar wording in Article 175A must be construed as reinforcing the, view that Parliament

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did not intend to oust the jurisdiction of Supreme Court to review the decisions of the
Committee.?

It would be obvious from a plain reading of Art.69 of the Constitution that the limited ouster
of jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of
business of the Parliament. The decisions of the Committee (even if comprised of persons
who are honourable members of Parliament) cannot be considered immune from judicial
scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the
Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is
independent of and separate from Parliament notwithstanding its composition. It performs an
executive function relating to the Judiciary and, therefore, has been placed in the Chapter
relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora (Parliament)] dealing
with Parliament.

The justiciability of the decisions of the Parliamentary Committee can also be approached
from another angle, which would be manifest from a holistic examination of the Constitution.
The governance of State organs in Pakistan is based on checks and balances where the powers
of each organ are counter-balanced by some other organ of the State. Thus, executive action
taken by the various administrative and executive functionaries of the State can be called in
question, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action
may additionally be subject to Parliamentary review and over-sight in the parliamentary
system of governance. Legislative action can also be called in question in Court, inter alia, on
the touchstone that it is violative of the Constitution. Likewise, decisions rendered by
Supreme Court can be modified or reversed by legislation (in recognized circumstances) and
such legislation may also be retrospective. Thus each organ of the State, be it the Judiciary,
the Executive or the Legislature, operates under constitutional constraints which effectively
make these organs of State limited in their actions.?

Additional Collector II, Sales Tax v. Abdullah Sugar Mills Ltd. 2003 SCMR 1026;
Muhammad Ismail and others v. The State PLD 1969 SC 241; Maxwell on the Interpretation
of Statutes; Fazlul Qauder Chaudhry v. Muhammad Abdul Haq PLD 1963 SC 486; Central
Board of Revenue and another v. S.I.T.E. PLD 1985 SC 97; Chief Justice of Pakistan Iftikhar
Muhammad Chaudhry v. President .of Pakistan and others PLD 2010 SC 61; Sardar Farooq
Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 and
Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(h) Constitution of Pakistan---

----Arts. 175A & 184(3)---National Accountability Ordinance (XVIII of 1999), S.6(2)(i)---

Decisions of Parliamentary Committee constituted under Art.175A of the Constitution---
Justiciability---Contention of the counsel for Federation was that Supreme Court should infer
that through the 19th Constitutional Amendment, it was intended by Parliament that decisions
taken by the Parliamentary Committee should not be subject to judicial review; such inference
was sought on the basis that the suggestion in the order of the larger Bench of the Supreme
Court dated 21-10-2010 (Nadeem Ahmad and others v. Federation of Pakistan and others
PLD 2010 SC 1165) as to justiciability was not incorporated in the amended Article---Held,
contention of the counsel based on implication and not on the wording of Article 175A (as
amended), was contrary to the jurisprudence that has evolved in the jurisdiction of Supreme
Court and ignored the legal precept that the Constitution was to be construed as an organic
whole.?

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(i) Jurisdiction---

----Ouster of jurisdiction---Scope-Principles.
?
(j) Constitution of Pakistan---

----Arts. 175A, 69 & 184(3)---Parliamentary Committee created under Art.175A of the

Constitution---Status---Refusal of Parliamentary Committee to confirm the nominations made
by the Judicial Commission for the extension in the tenure of Additional Judges of the High
Courts---Judicial review---Scope---Independence of Judiciary, which the Constitution assures
depends directly in the appointment, removal and security of tenure of Judges---Decisions of
the Committee are by their nature, executive decisions---Committee's decisions have not been
put beyond the pale of judicial review---Principles.

Decisions of the Committee are, by their nature, executive decisions. The fact that these
decisions have been taken by persons who also happen to be parliamentarians, does not alter
the nature of the decisions. The task which the Committee is meant to undertake is part of the
process of making judicial appointments. The matter of making judicial appointments is, in
essence, an executive function. Therefore, the Committee, must not be seen as a
`parliamentary' committee properly speaking; rather, in constitutional terms, it is a committee
of parliamentarians, acting independently as a Constitutional body in an executive capacity.

Although the eight member Committee has been given the appellation of "Parliamentary
Committee", it is important to bear in mind that the status of a constitutional body is not to be
determined by the name given to it. This to be determined by the functions it performs and the
place it occupies in the constitutional order. It is important to state with clarity the status of
the Committee created under Article 175A and, in the process, to allay any misconceptions
about it. For this purpose, we need to look no further than the Constitution itself.?

On the other hand, Article 175A has set up an independent constitutional body having a
specific role assigned to it relating to the appointment of Judges of Supreme Court and of the
High Courts. This constitutional body, has been referred to as a Parliamentary Committee but
it is neither part of Parliament when acting under Article 175A nor is it elected by or
answerable to Parliament. An examination of the Constitution and established Parliamentary
practice will further demonstrate this distinction between the Committee set up under Article
175A and a parliamentary committee.?

The use of Committees by Parliament is an old and well established practice which was
adopted during the colonial era and finally was given constitutional status under the 1973
Constitution. Legislation and parliamentary decision making are facilitated through
consideration in Committee (rather than the entire House) of proposed legislation and the
performance of other roles entrusted to Parliament. The role of a Parliamentary Committee is
simply to examine such legislation or other proposed Parliamentary action. It is the
Parliament alone which is empowered to pass legislation or exercise such functions which the
Constitution entrusts to it. Thus, a Parliamentary Committee as properly understood in
constitutional scheme simply facilitates Parliament in the performance of its legislative and
constitutional functions acting as a mere delegate or in the case of the Finance Committee, as
an advisor to the House which has elected it. Crucially though, for present discussion, a real
parliamentary committee is elected by each of the Houses of Parliament and is a subordinate
sub-set of the entire House, accountable to the House it belongs to.

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In stark contrast, the Committee established under Article 175A(9) of the Constitution is
comprised of eight Members (four front each House) who are neither elected by the Houses of
Parliament nor are they in any manner answerable or accountable to either of the said Houses.
It is in this sense that the larger Bench of Supreme Court vide its order dated 21-10-2010
(Nadeem Ahmad and others v. Federation of Pakistan and others PLD 2010 SC 1165) has
adverted to the Committee as a "Committee of Parliamentarians" to distinguish this
constitutional body from a parliamentary committee as understood and defined in the rules of
procedure and conduct of business of the two Houses. This distinction is also important to
note while addressing the issues raised.

Essential distinction between a parliamentary committee (elected and answerable to

Parliament) and a nominated Constitutional body, not answerable to Parliament has not been
kept in view in the Federation's stance. If this fundamental distinction is considered in the
light of Article 69 of the Constitution, this view will be further reinforced that the
Committee's decisions have not been put beyond the pale of judicial review.?

It would be obvious from a plain reading of Art. 69 of the Constitution that the limited ouster
of jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of
business of the Parliament. The decisions of the Committee (even if comprised of persons
who are honourable members of Parliament) cannot be considered immune from judicial
scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the
Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is
independent of and separate from Parliament notwithstanding its composition. It performs an
executive function relating to the Judiciary and, therefore, has been placed in the Chapter
relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora (Parliament)] dealing
with Parliament.

The justiciability of the decisions of the Parliamentary Committee can also be approached
from another angle, which would be manifest from a holistic examination of the Constitution.
The governance of State organs in Pakistan is based on checks and balances where the powers
of each organ are counter-balanced by some other organ of the State. Thus, executive action
taken by the various administrative and executive functionaries of the State can be called in
question, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action
may additionally be subject to Parliamentary review and over-sight in the parliamentary
system of governance. Legislative action can also be called in question in court, inter alia, on
the touchstone that it is violative of the Constitution. Likewise, decisions rendered by
Supreme Court can be modified or reversed by legislation (in recognized circumstances) and
such legislation may also be retrospective. Thus each organ of the State, be it the Judiciary,
the Executive or the Legislature, operates under constitutional constraints which effectively
make these organs of State limited in their actions.?

If it is accepted, that the decisions of the Committee are not amenable to judicial review, a
truly unique status higher, than the Executive, the Judiciary and Parliament, will have to be
accorded to this nominated Committee, outside the matrix of checks and balances that
constrain the Parliament, the Executive and the Judiciary. This will be so because in such
event, the Committee will not be subject to any check as it is already not answerable for its
decisions either to Parliament or to the highest functionaries of the Executive, including the
President and the Prime Minister. Such an interpretation of the Constitution, which places the
decisions of the Committee beyond the pale of review by any other instrumentality or organ
of the State would be contrary to the scheme of the Constitution and will, in effect, vest the
Committee with untrammelled powers. Bearing in mind the assurance in Parliament that "the

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fundamental principles of the Constitution are not altered", it will not be possible to ascribe
such powers, to the Committee, while interpreting Article 175A of the Constitution.

To appreciate the above notion with clarity, we need to understand the implications of
affording unbridled powers to the Committee. Contention of the counsel of Federation was
that the Committee has the power to reject any nomination of the Judicial Commission (even
one unanimously passed) for "any reason under the sun", and that such a rejection must, in all
cases, be deferred to by Supreme Court. The implication of this extraordinary submission
would be that even where a decision of the Committee has the effect of eroding and
undermining the independence of the Judiciary, Supreme Court will be helpless in checking
such erosion. The Committee is not required to send its decision to the Parliament for
approval, the role and discretion of the Prime Minister and the President as previously
envisioned in the Constitution "has been taken away". The eight-member nominated
Committee or, rather a Committee of Parliamentarians cannot claim such unchecked
authority. Given this, the operation of the Committee cannot be imagined, without the check
of judicial review.?

Constitution contemplated the trichotomy of power between the three organs of the State,
namely, the Legislature, the Executive, and the Judiciary... it was envisaged that the Judiciary
would be independent and separate from the other organs of the State... The independence of
the Judiciary is a basic principle of the constitutional governance in Pakistan. The
independence of the Judiciary was a basic and a salient feature of the Constitution.?

"Independence of the Judiciary" which the Constitution assures, depends directly on the
process of the appointment, removal and security of tenure of Judges. The independence of
Judiciary is inextricably linked and connected with the constitutional process of appointment
of Judges of the superior Judiciary the terms, conditions and security of tenure of Judges is
also central to the independence of the Judiciary. Security of office of Judges and of its tenure
was a sine qua non for the independence of Judiciary. Indeed it is an undisputed tenet of the
Constitutional scheme that in matters of appointment, security of tenure and removal of
Judges the independence of the Judiciary should remain fully secured.?

The constitutional jurisprudence which relates specifically to the issue of appointment of

Judges, reveals that prior to the 18th amendment, it was well settled as a principle that the
executive organ of the State was obliged to give reasons for its decisions if it chose to differ
with the opinion of the Chief Justice of Pakistan. It was also well settled that the reasons
given by the executive organ of the State were justiciable. The touchstone and scope of
justiciability and the limits of the executive authority to differ from the opinion expressed by
the Chief Justice of Pakistan also came to be well defined in the context of Article 193 of the
Constitution which related to the appointment of Judges of the High Courts. It is, thus,
beyond doubt that the constitutional principles relating to the independence of the Judiciary
were already well-settled at the time the 18th and the 19th Amendments were tabled in
Parliament; these principles remain fundamentally unaltered even after the above-mentioned
Amendments, notwithstanding the changes in the procedure for making judicial
appointments.?

Parliamentary debates can also be resorted to (in certain situations) to ascertain the meaning
of any legal text. Speech by Chairman of the Special Committee of the Parliament for
constitutional Reforms, given on the floor of the National Assembly categorically clarified
that it was not the intention of the 18th and 19th Amendments to alter the fundamental
principles of the Constitution. He said: "... before I go into the details of this Article [175A],

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let me once again reiterate that one of the essential purposes rather two or three of the
essential purposes which made up the basis for these constitutional reforms was to ensure that
the fundamental principles of the Constitution are not altered. That whatever amendments are
made, are made within the ambit of fundamental principles of the Constitution. And when
dealing with various institutions under the Constitution, their independence is not
undermined. And that their independence as ensured in the Constitution of 1973 is reassured".

This reassurance indeed reflects the intention of Parliament and gives guidance to the Court
as to the aims of Parliament in bringing about reforms in the procedure for appointment of
Judges. It is precisely such reassurance which gives relevance to and enables Court to draw
guidance from precedents, alluded to above, that, expound the principle of the independence
of the Judiciary and its dependent relationship with the manner of judicial appointments. In
other words, insofar as "the fundamental principles of the Constitution are not altered," the
precedents that explain those principles are also relevant.

Once this is understood, task of interpreting the newly added provisions of the Constitution
becomes relatively simple. Since the decisions of the Committee have a direct bearing on the
practical manifestation of foundational constitutional principles, Court cannot possibly
abdicate its jurisdiction and not examine their meaning. At the same time, however, Court
remain cognizant that Parliament has, while adhering to the fundamental principles of the
Constitution, made changes which should be given effect in furtherance of these principles.
Looked at in this light, it is clear that the essence of the amendments is to bring about changes
in the process of making judicial appointments, rather than in the structure and underlying
values of the Constitution such as the independence of the Judiciary and one of its supporting
pillars namely, judicial appointments.?

It is the constitutional mandate of Supreme Court to exercise judicial review over the
decisions of the Committee, which, after all, are executive decisions that have great bearing
on the independence of the Judiciary and the separation of powers between the different State
organs.

Counsel for the Federation contended that the question of justiciability of the decisions of the
Committee had yet to be decided by the seventeen-member larger Bench of the Supreme
Court in the petitions filed to challenge the vires of the 18th Amendment. On this basis, he
submitted that present Bench should await the decision of the larger Bench and, in the
meanwhile, put the adjudication of these petitions on hold. Counsel was of the view that the
present petitions were a back-door attempt to challenge the role of the Committee and to
undermine such role even before the Full Court has had the opportunity of deciding the
petitions challenging the 18th Amendment.

Supreme Court reiterated that the scope of 'these petitions was materially different from the
scope of the petitions being heard by the larger Bench. The present petitions assume the
validity of the 18th and 19th 'Amendments. The petitioners only seek judicial interpretation of
these Amendments for the purpose of their challenge to the two decisions taken by the
Committee. Put simply, while the present petitions seek judicial review of decisions of an
executive body, purported to be taken under Article 175A of the Constitution, the petitions
before the larger Bench challenge the very authority of Parliament to make the amendments
challenged in such petitions. It is, therefore, evident that any adjudication in these petitions
will relate only to the impugned decisions of the Committee and not to the validity of the
Amendments in the Constitution.?

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The Committee, though comprised of members of Parliament, is not to be equated with

Parliament or, even with a parliamentary committee elected by Parliament under the Senate
Rules or the Assembly Rules.?

Al-Jehad Trust through Raseesul Mujahideen Habib-ul-Wahabb?ul-Khairi and others v.

Federation of Pakistan and others PLD 1996 SC324; Sindh High Court Bar Association and
another v. Federation of Pakistan and others PLD 2009 SC 879; Sharaf Faridi v. Federation of
Islamic Republic (PLD 1989 Kar 404: Zafar Ali Shah's case PLD 2000 SC 869; Chief Justice
of Pakistan Iftikhar M. Chaudary v. President of Pakistan through Secretary and others PLD
2010 SC 61; Mehram Ali's case PLD 1998 SC 1445; PLD 2010 SC 61; Hakim Khan and
others v. Government of Pakistan and others PLD 1992 SC 595; A & B Food Industries
Limited v. Commissioner of Income Tax/Sales, Karachi 1992 SCMR 663 and Messrs Gadoon
Textile Mills and others v. WAPDA and others 1997 SCMR 641 ref.

(k) Constitution of Pakistan---

----Arts. 175A & 184(3)---National Accountability Ordinance (XVIII of 1999), S.6(2)(i)---

Decisions of Parliamentary Committee constituted under Art.175A of the Constitution---
Justiciability---Contentions of the counsel for the Federation were that the question of
justiciability of the decisions of the Committee had yet to be decided by the seventeen-
member larger Bench of the Supreme Court in the petitions filed to challenge the vires of the
18th Constitutional Amendment and that present Bench should await the decision of the larger
Bench and, in the meanwhile, put the adjudication of present petitions on hold-,Counsel was
of the view that the present petitions were a back-door attempt to challenge the role of the
Committee and to undermine such role even before the Full Court has had the opportunity of
deciding the petitions challenging the 18th Amendment---Validity---Supreme Court observed
that the scope of present petitions was materially different from the scope of the petitions
being heard by the larger Bench---Present petitions assume the validity of the 18th and 19th
Amendments---Petitioners, in the present petitions, only seek judicial interpretation of these
Amendments for the purpose of their challenge to the two decisions taken by the Committee
and seek judicial review of decisions of an executive body, purported to be taken under
Article 175A of the Constitution while the petitions before the larger Bench challenge the
very authority of Parliament to make the Constitutional Amendments---Any adjudication in
the present petitions therefore, will relate only to the impugned decisions of the Committee
and not to the validity of the Amendments in the Constitution.?

(l) Constitution of Pakistan---

----Arts. 175A & 184(3)---Appointment of Judges of Supreme Court and High Courts---
Interpretation of Art.175A of the Constitution and the principles on which said Article is
based---Creation of `Judicial Commission' and `Parliamentary Committee' under Art.175A of
the Constitution---Historical circumstances and reasoning---Roles envisaged for `Judicial
Commission' and `Parliamentary Committee' in the Constitution---Scope---Parliamentary
Committee though comprised of members of Parliament, is not to be equated with Parliament
or, even with a Parliamentary Committee elected by Parliament under the Senate or Assembly
Rules---Parliamentary Committee' cannot (without eroding judicial independence) be seen as
a superior body sitting in appeal over the recommendations of the Judicial Commission with
the ability to set aside or reverse the well-considered opinion of the members of the Judicial
Commission-Decisions of Parliamentary Committee are executive in nature, having bearing
on the independence of Judiciary and the separation of powers between the different State

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organs---Supreme Court under the constitutional mandate can exercise Judicial review over
the decisions of the Committee--Principles.

In order to properly interpret the provisions of Article 175A and the principles upon which the
Article is based, it is also necessary to have a closer look at the historical circumstances and
the reasoning which informed the earlier precedents of Supreme Court. This context will help
to appreciate the reasons why the two new institutions - the Commission and the Committee -
were created and what roles were envisaged for these constitutional bodies in the 18th and
-19th Constitutional Amendments.

Previously, there were a very small number of constitutional functionaries (judicial and
executive) who, through a process which was not very open, made decisions relevant to the
appointment of Judges of Supreme Court and of the High Courts. Instances in constitutional
history, therefore, tended either to create a tussle between the judicial consultees and the
executive functionaries of the State or, as happened in certain cases, the judicial consultees
felt over-whelmed, over-awed or ignored by the executive functionaries responsible for
making and notifying judicial appointments. Since this situation was not consistent with the
independence of the Judiciary, the matter was agitated, among others, in the Al-Jehad case
(PLD 1996 SC 324). It is through elaborate reasoning in the said case and examination of the
fundamentals of constitutional scheme, that a division of functions between the judicial
consultees and the executive functionaries was delineated by Supreme Court. It was held that
the judicial consultees are best suited to determine the calibre, competence, legal acumen and
over-all suitability of a person for appointment to a tenured judicial office under the
Constitution. The executive functionaries on the other hand were considered more suitable for
ascertaining the antecedents of judicial appointees. A reasonably clear demarcation between
the different roles, respectively, of the judicial consultees and the executive functionaries of
the State was thus drawn. And with the passage of time this demarcation was further refined.
In the latest pre-amendment judicial pronouncement on the question of appointment of
Judges, made in the case of Sindh High Court Bar Association and another v. Federation of
Pakistan and others (PLD 2009 SC 879), for instance, it was held that the opinion of the Chief
Justice of Pakistan in respect of the suitability of a person to be appointed to constitutional
judicial office had primacy and that this opinion was subjective and not open to challenge
through judicial review.

It is in the foregoing context that the creation of the Commission and the Committee must be
understood. It is quite possible that Parliament may have concluded that the Constitution as
interpreted in the foregoing precedents, had concentrated in one person viz. the Chief Justice
of Pakistan, enormous discretionary powers in the matter of making judicial appointments.
Such concentration, although tempered by consultation with the Chief Justice of the High
Court in which a particular appointment was to be made, could have been seen by Parliament
as having the potential of leading to error of judgment or, possibly, even abuse. These, or
similar concerns, can be of immense interest for the chosen representatives of the people.
Such concerns legitimately and eminently fall within the domain of. Parliament which may,
therefore, decide to bring about a balance in the respective roles of the judicial and executive
functionaries responsible for making judicial appointments, subject always to the avowed
objective and the constitutional imperative of having an, independent Judiciary whose
independence is to be "fully secured".

Therefore, apparently guided by this object, in the new dispensation, instead of one person,
namely the Chief Justice, or at best two, namely the Chief Justice of Pakistan and the Chief
Justice of the concerned High Court, taking a decision on the competence and suitability of a

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potential judicial appointee, the decision-making power has been diffused and spread over a
collegium comprised of thirteen persons. A similar diffusion appears to have been intended
for the executive role in judicial appointments by constituting the Parliamentary Committee.

In this light, if we consider further the composition of the Commission, it will lead us closer
to understanding the role envisaged for it. It is clear that each member of the Commission is
directly and substantially connected with the courts in one way or another. The members of
the Commission thus have the occasion of assessing first hand, the legal abilities and
performance of persons who potentially could be appointed as Judges. In the ex Officio
appointments of the Minister of Law and Parliamentary Affairs and of the Attorney General
for Pakistan, the Judicial Commission now also has the additional ability to make an
assessment as to the antecedents of a nominee through access to the information and
executive resources of the State which otherwise, may not be available to the other members
of the Judicial Commission. What is also worth noting is that barring the one former Judge of
Supreme Court and the advocates who are members of the Commission, all others are ex
Officio constitutional functionaries making the Commission a continuous body with changing
membership, the preponderant majority whereof, being ex Officio, is not dependent on any
separate process for their own appointment.

This composition of the Commission immediately highlights two things. Firstly, that the
expertise and core competence of the members of the Commission will facilitate the
identification and nomination of appointees to judicial office based on calibre, competence,
legal acumen, antecedents and over-all suitability -of a person for appointment as a, Judge.
Secondly, the composition of the Commission will ensure diverse inputs on account of the
diversity and the continuous changing nature of its membership, thus tending to make the
Commission's nominations more objective and not dependent on the personal opinion of one
or, at best, two individuals. It does not take a great deal of imagination or a leap of logic to
conclude that the role (as defined by precedent) which was assigned previously to the judicial
consultees is now to be performed by the Commission as a collegiate body.

It will be seen that in the original Articles 177 and 193, a Judge of the Supreme Court and
Judges of a High Courts were to be appointed by the President after consultation with the
Chief Justice of Pakistan and other consultees mentioned in Article 177 and Article 193(1)
respectively. These provisions, in relevant part, have been replaced by Articles 177(1) and
193(1), as amended, which stipulate, inter alia, that Judges of the Supreme Court and the High
Courts shall now be appointed by the President in accordance with Article 175A. When clause
(1) of Article 175A is considered; a bare reading of the same shows that the Commission has
been created for the appointment of Judges of the Constitutional Courts. Thus, while the
President previously made the appointments on the advice of the Prime Minister, both have
now been left with nominal ministerial roles and their powers, in the words of the Chairman
of the Constitutional Body, "have been taken away". The Prime Minister is now obliged to
simply forward the confirmation made or deemed to have been made by the Committee to the
President and the President equally is obliged to make the appointment on the basis of such
confirmation. The Prime Minister and President, under the new constitutional dispensation,
thus have no power or authority to differ with the decision of the Parliamentary Committee.
The role which they were performing in the previous legal setup, as examined above, is now,
logically, to be performed by the Committee. It is, therefore, evident that the purpose the
raison d'etre - of the Commission and the Committee is the appointment of Judges albeit in
accordance with the procedure laid down in Article 175A.

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Given this dispensation and the above referred historical context, the Committee cannot
(without eroding judicial independence) be seen as a superior body sitting in appeal over the
recommendations of the Commission with the ability to set aside or reverse the well
considered opinion of the members of the Commission. The fact that Parliament was fully
aware of the state of the law, as judicially interpreted, and yet did not define or demarcate the
respective roles inter se of the Commission and the Committee, provides very strong
manifestation of the intention of Parliament "that the fundamental principles of the
Constitution are not altered". The distinction between the legal acumen and suitability of an
appointee, and his antecedents is so well recognized in our constitutional jurisprudence that it
is not possible to assume that it was not in the mind of Parliament when it decided to amend
the Constitution. From the absence of role-definition in Article 175A, in respect of the
Commission and Committee, it can safely be inferred that Parliament intended to preserve the
delineation of powers in the previous dispensation, but vest the roles in more diffused bodies
than was previously the case.
?
It is the constitutional mandate of Supreme Court to exercise judicial review over the
decisions of the Committee, which, after all, are executive decisions that have great bearing
on the independence of the judiciary and the separation of powers between the different State
organs.?

The Committee, though comprised of members of Parliament, is not to be equated with

Parliament or, even with a parliamentary committee elected by Parliament under the Senate
Rules or the Assembly Rules.

Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009
SC 879 ref.

(m) Constitution of Pakistan---

----Arts. 175A & 184(3)---Constitutional petitions before Supreme Court under Art.184(3)
of the Constitution assailing the decisions of the Parliamentary Committee created under
Art.175A of the Constitution---Maintainability---Exercise of power of Judicial review by
Supreme Court---Rules which define the exercise of such power and source from which these
rules are to be derived exhaustively explained--Constitutional petitions were maintainable
under Art.184(3) of the Constitution since these petitions involved issues of public importance
and were related to the enforcement of Fundamental Rights and independence of Judiciary---
Decisions of Parliamentary Committee were subject to Judicial review of the Supreme Court-
--Said decisions of the Committee in the present case were based on an erroneous
understanding of the law and the Constitution---Such decisions of the Committee were
unconstitutional without lawful authority, therefore, they were of no legal effect---Principles.

Decisions of the Committee are justiciable and subject to Supreme Court's power of judicial
review. The foremost source for determination of the rules which define the exercise of such
powers and source from which these rules are to be derived must be the Constitution itself
which has created Supreme Court as well as the two constitutional bodies viz. the
Commission and the Committee. The basis of judicial review in these cases thus must be
firmly anchored in the Constitution. Article 5(2) of the Constitution declares that "obedience
to the Constitution and law is the inviolable obligation of every citizen ..." This means that the
Committee too is obliged to ensure that its decisions are in accordance with the law and the
Constitution. Whether this obligation has been duly discharged would be a matter reviewable
by Supreme Court. The touchstone for such review is conformity with the Constitution and

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the law. This is in line with Article 184(3) read together with Article 199(l)(a)(ii), which
confer upon Supreme Court the authority to make, in appropriate cases, an order declaring
that "any act done ... in connection with the affairs of the Federation ... has been done without
lawful authority" and is, therefore, "of no legal effect." It follows that what the Supreme Court
needs to determine presently is whether the impugned decisions of the Committee conform
with the requirements of the Constitution and the law, and whether such decisions have been
taken while remaining within lawful authority. The grounds upon which Supreme Court can
adjudge this issue flow directly from these constitutional provisions themselves; they have
also been elaborated upon in a number of precedents.?

Grounds for exercise of Court's power of judicial review are `illegality', `irrationality' and
'procedural impropriety.' What is important for deciding the present petitions is the scope and
nature of 'illegality', which, is measured on the consideration... that the decision-maker must
understand correctly the 'law that regulates his decision-making power and must give effect to
it. Whether he has or not is par-excellence a justiciable question to be decided, in the event of
dispute, by those persons - the Judges by whom judicial power of the State is exercisable.
Thus any decision based on an incorrect understanding of the law that .regulates the decision-
maker's decision-making power, would be an illegal decision, and it could be corrected
through judicial review. What must be emphasized here is that in disputed cases, it is for the
courts to definitively interpret the law and thereafter to test the administrative decision on the
touchstone of the law so interpreted.

In the present case, the Committee has taken a decision in accordance with its own
understanding of Article 175A.?

The Commission performed its function s of nomination and appointment of the High Court
Judges, in accordance with the provisions set out in clauses (1) to (8) of Article 175A of the
Constitution.

The Committee, after receiving the nominations including the recommendations for renewal
of tenure of Judges, took the decision not to confirm their nominations. It is important to note
that the Committee chose to disregard the unanimous nominations made by the Judicial
Commission. For this, committee appears to have relied only on the contents of brief pro
formas which had been filled in by the Chief Justices of the High Courts. These pro formas
appear to have been designed by the Commission for the purpose of obtaining particulars and
general information about the persons being considered for appointment as Judges. The
material column in the pro forma, for the purpose of the present petitions, relates to the
evaluation made by the Chief Justice of the concerned High Court in respect of a potential
nominee, based on criteria such as integrity, knowledge of laws, performance etc. The pro
forma also contains the opinion of the Chief Justice of the concerned High Court as to
whether or not a person being considered should be recommended to judicial office. In the
case of the one group of Additional Judges, the recommendation made in the pro forma was
that their tenure be renewed for a period of one year. However, in respect of the two
Additional Judges of the High Court, the opinion stated by the Chief Justice was that their
tenure should not be extended. Nevertheless; after deliberation by the Judicial Commission as
a collegiate constitutional body, even the Chief Justice of the High Court agreed that the two
Additional Judges of his Court should be recommended for renewal of their respective tenures
for a further period of one year. The Committee chose, nonetheless, to turn these nominations
down, relying solely on the earlier views expressed by the chief justices of the High Courts.

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From this review of the facts, it seems clear that the Committee took Article 175A to mean
that it is a constitutional body sitting in appeal over the decisions of the Commission. This, is
far from being the case. Such an interpretation is borne out neither by the text of Article 175A
nor by its context. Foundational principles of Constitution, are independence of the Judiciary
and separation of powers, in the light of which Article 175A must be interpreted. The
historical evolution of this Article and the legislative intent behind it, demonstrates that while
power has been devolved from persons to collegial institutions, the essential demarcation of
duties between judicial consultees and executive functionaries, chalked out by precedent, has
remained largely intact. All constitutional provisions have to be interpreted accordingly. The
independence of Judiciary is now not merely one of the general principles of the Constitution
of Pakistan; it is part of its substantive provisions and the relevant constitutional provisions
must be construed accordingly to ensure the independence of the Judiciary. The provisions of
Part-VII of the Constitution must be taken as giving elect to ...that general principle. Review
of these factors, which collectively provide the context in which to read Article 175A, allows
to conclusively arrive at a more organic interpretation of the said Article. And, this
interpretation does not support the expansive manner in which the Committee has construed
its own power,-nor does it support the dismissive way in which the Judicial Commission's
unanimous recommendations have been treated. The Committee's decision, based on an
incorrect understanding of the constitutional provision regulating its decision-making powers,
travelled much beyond its lawful authority. On this ground alone, it may be held that the
decisions of the Committee impugned, were taken without lawful authority and are thus
unconstitutional.?

To ensure the independence of the Judiciary, it is important that the process of making judicial
appointments remains independent of the Executive and the Legislature, except for such
executive inputs in decision-making which can ensure and advance the independence of the
Judiciary. In the present case, the Committee has not provided any such input.?

Thirteen members of the Commission are law-knowing and law related persons who can
make an objective evaluation of the suitability of a nominee for judicial office. From
members of the Committee, it is not expected that they will have first hand information about
a nominee or that they will have the same level of expertise as the Commission, to evaluate
the suitability of a nominee for appointment to high judicial office. The Committee, however,
is not a meaningless or redundant body. It has the ability to add value to the process of
making judicial appointments by taking into account information which is different from and
may not have been available with the Commission.?

The two bodies namely, the Commission and the Committee were coordinate bodies, neither
of which was subordinate to the other. If, however, it is conceded either that the decisions of
the Committee are not justiciable or that it has the power to review and reverse the findings of
the Commission, an anomalous and even absurd situation can result. It would not be possible
or justifiable (without adversely affecting the independence of the Judiciary) to interpret
Article 175A in a manner which grants a virtual veto to the Committee enabling it to reverse
the recommendations of the Commission, for considerations which have already received the
attention of the Commission in its deliberations. This is so because of the composition of the
two bodies. It cannot he seen as the intention of the Constitution as amended, that the thirteen
members of the Commission who amongst them include the five senior-most members of the
Judiciary in the country together with a former Judge of Supreme Court and the Chief Justice
of the High Court concerned, should be trumped in their views about the competence and
suitability of a nominee, by six members of Parliament who, are not supposed to be equipped
with the core ability for evaluating, inter alia, legal acumen and competence.?

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The two constitutional bodies also cannot be seen as adversaries serving antagonistic and
conflicting ends. That the object of both bodies is to ensure the selection and appointment of
the most suitable persons as Judges of the High Court, which, in turn, is essential to secure
fully the independence of the Judiciary.?

There is another way in which the Parliamentary Committee's decision can be shown to be
based on an erroneous understanding of the law and also violative of the spirit of the
Constitution, as, amended. One of the fundamental aspects of the 18th and 19th Constitutional
Amendments, and the changes intended to' be brought about thereby, was to do away with the
subjective opinions of one or two persons. This object was to be achieved through the creation
of a thirteen-member collegium which could, through consideration of varying opinions,
make a collective decision by majority of its membership. In the present case, the collegium
which is the Commission has, after deliberation, made nominations which arc unanimous and
include also the concurrence therein of the respective Chief Justices of the High Courts.

In the foregoing circumstances, it would negate the very purpose of the 18th and 19th
Amendments, if the Committee were to have the power to rely upon the opinion of just one
member of the Commission, and that too, expressed prior to collective deliberations, to
nullify the ultimate collective views of the Commission. The purpose of diffusing the
decision-making process and spreading it over a collegium comprising of thirteen persons
was to ensure that an objective and balanced opinion emerges from the deliberations of the
Commission. This process was meant to ensure, to a great degree, objectivity in the
nominations made after discussion and inputs from all members of the Commission.?

Counsel appearing for the Federation, wished to emphasize the fact that the Chief Justice of
the High Court was most suitable and was eminently qualified to make an evaluation as to
competence etc. of a nominee. He seemed to suggest that since the Parliamentary Committee
had relied on the views expressed by the Chief Justices of the respective High Courts to
which the concerned Judges were nominated, this lent weight to the Committee's decision.
This is an argument which is flawed on three counts:

Firstly, it is relevant to note that the pro forma filled in by the Chief Justices of the two High
Courts was at best a mechanism for tabling the particulars of a nominee which would enable
the Commission (acting collectively) to have a meaningful and purposive discussion leading
to an informed decision about recommending such nominee. It is not necessary in the facts of
the present petitions to embark on a scrutiny of the evaluations of the Chief Justices, made in
respect of the Judges whose nominations are in question, because after considering each
nomination, the Commission (including the Chief Justices of the High Courts) has
unanimously made its recommendation that their tenures be renewed. The pre-deliberation
evaluations of the Chief Justices of the High Courts do not now need to be considered
because, as a matter of law, such evaluations disappeared when they merged into the final
recommendation of the Commission made by a majority of its members and which, in the
present case, has been made unanimously.

Secondly, this argument does not take into account the express wording of Article 175A which
mandates a collective decision of the Judicial Commission and leaves no room for individual
opinions of any one member of the Judicial Commission. It should he clear by now that the
Constitution, in its amended form, recognizes only the collective decision of the Commission.
The Constitution does not accord any primacy or special weightage to the opinion of any one
member of the Judicial Commission. This is particularly so when such opinion is a purely

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individual opinion without benefit of the views of other members of the Judicial Commission.
If anything, the amendments in the Constitution appear consciously and deliberately to have
eliminated reliance on the views of a single person. Weightage, if any, which may attach to
the opinions of the individual members of the Judicial Commission, is a matter for
consideration by the Judicial Commission alone because the Constitution as amended, does
not recognize individual opinions as to the competence, antecedents or over-all suitability of a
nominee.

Thirdly, the argument does not 'take into account the larger ramifications of such a ruling for
the future of constitutional system. If it is held today that the Parliamentary Committee may
give primacy to the opinion expressed by the High Court Chief Justice sitting in the
Commission, tomorrow, there would be little justification left for objecting, if the
Parliamentary Committee relied on the individual and varying opinions of any one of the
thirteen members of the Judicial Commission. So, if things were left to proceed in that
direction, even a 12-1 majority decision of the Judicial Commission could easily be negated
by the Parliamentary Committee, relying on the one note of dissent that they find therein. This
would effectively grant the Parliamentary Committee a veto in the appointment of Judges a
situation contemplated neither by the Constitution nor palatable to any of the organs of the
State, including the Parliament itself.?

Petitions are maintainable under Article 184(3) since they do involve issues of public
importance and are related to the enforcement of fundamental rights.?

Decisions of the Parliamentary Committee are subject to judicial review in Supreme Court. ?

Impugned decisions of the Committee are based on an erroneous understanding of the law
and the Constitution; since these decisions were taken without lawful authority, they are of no
legal effect.?

Supreme Court observed that there is nothing unusual or exceptional about differences as to
constitutional questions cropping up between constitutional bodies or State functionaries in a
democratic dispensation. Such differences may arise particularly when new provisions are
incorporated in the Constitution. However, as nations mature and polities evolve, their
maturity is reflected in the manner in which such differences are resolved in accordance with
the governing compact, which is the Constitution. The differences of opinion between the
Commission and the Committee, in this context, cannot be seen as adversarial turf-wars
between the two bodies, or as matters of prestige. Both bodies, have the common aim of
ensuring that "... the will of the People of Pakistan to establish an order ... wherein the
independence of the Judiciary is fully secured," which is an objective set out in the
Constitution itself, is accepted as a command of the People and is implemented, both in letter
and in spirit with due humility and sincerity.
?
Article 28 and 251 of the Constitution highlight the Constitutional imperative of promoting
languages other than English. In order to fulfil this need a gist of present opinion is (without
need for intermediaries) made accessible to a wider section of those who are unable to
understand the language of present opinion.?

Makhdoom Ali Khan, Senior Advocate Supreme Court, Faisal Hussain Naqvi, Advocate
Supreme Court, Arshad Ali Ch. Advocate-on-Record, Khurram Hashmi, Umair Malik, Ilyder
Ali Khan and Saad Hashmi, Advocates for Petitioners (in Const. P. No.10 of 2011).

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Anwar Mansoor Khan, Senior Advocate Supreme Court, Abid S. Zuberi, Advocate Supreme
Court and Asim Mansoor Khan, Advocate for Petitioners (in Const.P.No.18 of 2011).

A K.K. Agha, Addl. A.G. for Pakistan and M.S. Khattak, Advocate-on-Record for Respondent
No. 1.

Iftikharullah Babar, Acting Secretary, Senate for Respondent No.2.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan (On Court's call).

Dates of hearing: 24th, 28th February, 1st, 3rd and 4th March, 2011.

JUDGMENT

MAHMOOD AKHTAR SHAHID SIDDIQUI, J.---These two Constitutional Petitions,

bearing Nos.10 and 18 of 2011, have been filed under Article 184(3) of the Constitution of
Pakistan challenging the two specific decisions of the Parliamentary Committee, constituted
under Article 175A, whereby it refused to confirm the nominations made by the Judicial
Commission, 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 4-3-2011. 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 Vice Chairman of the Balochistan Bar Council and an Advocate 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 is, 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 Judicial 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 under:--

"It 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 Committee dated 22-2-2011 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."

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4. Mr. Makhdoom Ali Khan, learned Sr. Advocate Supreme Court, without touching the vires
of Article 175A of the Constitution, argued that the nominations/recommendations made by
the Judicial 'Commission regarding the competence, eligibility and suitability of judges for
appointment/extension of tenure is exclusively 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 conclusion 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 different.

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 laminas 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 Parliamentary Committee as corum non
judice and without jurisdiction. Therefore, he prayed, that the reasons given by the
Parliamentary Committee, for rejecting 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 Committee
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. Advocate Supreme Court and Mr. Abid S. Zuberi,
Advocate Supreme Court, took up the stance that the unanimous recommendations for
extending the tenure of the two judges of Sindh High Court were binding on the
Parliamentary Committee and its rejection without assigning valid and cogent 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 on 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 A.A.-G. 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

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"Parliamentary Committee", constituted under Article, 175A, can even remotely be

considered as a part of the legislature or how, for that matter, any 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
provisions 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 Constitutional 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
attribute. 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 legislative 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 inclinations could be a
basis for their disqualification under such law. We felt that the learned A.A.-G need not have
put the matter in this manner, conveying to us a sense of essential, eternal and assertive
political agenda in the performance of a soleman Constitutional duty.

13. We now turn to the 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 Commissioner which was held on January 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
members of the Commission about the nominations initiated by 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. Nos. 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 Serials Nos. 3, 5, 7, 14,

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16, 18, 19, 21, 33 and 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:--

"(3) The Commission had in-depth discussions about their professional caliber, legal
acumen, judicial skill, quality and quantum of judgments, commitment/devotion to
duty, efforts made for expeditious disposal of cases, number of reserved/pending
judgments, and also examined their antecedents and decided as under:--

??????????? (A) ???????????

(B) The Additional Judges at Serials 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 Serials 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 22-1-2011, 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 "pro forma 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 "pro forma".

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 aforementioned 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 17-2-2011. 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 "PRO FORMA FOR INITIATION OF
NOMINATION FOR APPOINTMENT AS JUDGE OF THE LAHORE HIGH COURT
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 pro
forma 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.

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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 by him. The Chief
Justice, High Court of Sindh stated based on their performance and behavior/conduct
he has duly recommended the Additional Judges at Serial Nos. 3, 4, 7 and 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 paragraph 3, relevant portions of which are also reproduced here:--

(3) The Commission had in-depth discussions about professional caliber, legal
acumen, judicial skills, quality and quantum of judgments, commitment/devotion to
duty, efforts made for expeditious disposal of cases, number of reserved/pending
judgments of each of the aforesaid Additional Judges, 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/behavior, 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) 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 Serials 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 effect from 18-2-2011".
(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 19-2-2011, 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 24-2-2011. 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

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Public, bench and bar" and column of "General Remarks" of the "PRO FORMA FOR
INITIATION OF NOMINATION FOR APPOINTMENT AS JUDGE OF THE HIGH
COURT OF SINDH, KARACHI" were material and therefore his proposal 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 "PRO
FORMA", were material and therefore his proposal for extension was also not justified.

20. After having considered the facts of this case, we 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 conclusions, 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 aforementioned meetings that
the entire 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 stature 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 devolved 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. He 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,

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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 is 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.
Therefore, even if a Chief Justice of the High Court is of the view that certain persons are not
fit to be 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. More so, 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 argument,
that the Attorney-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
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
Committee. 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 and make it nugatory
under the Constitution. 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 a majority of its total membership within
fourteen days, failing which the nomination shall be deemed to have been confirmed, or reject
the nomination on grounds falling within its domain for very strong reasons which shall be
justiciable. This is the clear direction of clause (12) of Article 175A.

27. Since in the present case, as already discussed above, the Committee has tried to assume
the jurisdiction of the Commission, there is no option but to come to the conclusion that the
Committee failed to perform its functions in terms of clause (12) of Article 175A. The
consequence of this failure has been prescribed by the Constitution itself. I The Committee
must act within a period of fourteen days of receiving the nominations, "failing which the
nomination shall be deemed to have been confirmed". So, while in any other case of failure to

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exercise jurisdiction, we might have been required to send the issue back to the' authority for
consideration in accordance with law, here the Constitution leaves us with no such option
because of a deeming provision.

28. The mandatory consequence of the deeming clause mentioned above is that the name of
the nominee confirmed by the Committee or "deemed to have been confirmed" shall be
forwarded to the President for appointment. The effect of a deeming provision has been laid
down time and again by the Courts and it has generally been held that it requires the court to
believe that something exists and has happened, though it may neither exist nor may have
occurred in reality. It thus creates a legal fiction. Reference in this regard may conveniently be
made to judgments of this court in Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD
1997 SC 582 at page 677) and Federation of Pakistan v. Mian Muhammad Nawaz Sharif
(PLD 2009 SC 644 at page 687).

29. Moreover the court, in such cases, is required to see for what purpose this deeming device
has been used by the legislature. In the present there can be little doubt that the purpose was
the completion of this exercise as early as possible and the Constitutional time period of
fourteen days sheds great light on the matter. Therefore, the failure of the Committee to'
perform its functions in accordance with its mandate results in the nomination "deemed to
have been confirmed".

30. In such circumstances, we are inclined to issue a direction to the Federation to notify the
appointments on the recommendations received, in accordance with Article 175A, within a
period of fourteen days. Such directions, to notify, have been given in the past and reference
may be made to the Malik Asad Ali case (PLD 1998 SC 33).

31. At this stage, it would also be appropriate for us to note that the contention of the A.A.-G
that earlier judgments on the issue of appointment of judges are irrelevant is a bit
misconceived. The change in the appointment process has merely diversified decision making
amongst the many members of the two new collegiate bodies, but essentially the roles of
these bodies, looked at collectively, remains the same. So as such the principles of law
enunciated in earlier judgments such as Al-Jehad Trust case, Malik Asad Ali and several
others would continue to apply to the new mechanism with full force. In fact, these principles
can be said to be applicable even more strongly after the introduction of the newly constituted
bodies under Article 175A.

32. The recommendations of the Judicial Commission are now on greater footing than the
recommendations of the Chief Justice alone in the earlier system. These cannot be superseded
for any extraneous considerations as already discussed above. Therefore, the Parliamentary
Committee cannot simply brush aside the recommendations of the Commission without its
own sound reasons. The Committee is to confine itself to the purpose for which it has been
constituted, which is evidently the thrashing out of issues not related to the domain of the
Commission. The Committee can, based on factual data and reasons, for instance, declare that
a nominee is corrupt or is affiliated/partial making him a controversial choice, but judging the
caliber of a nominee as a judge rests with the Commission.

33. These, read together with the reasons set out in the concurring opinion of Jawwad S.
Khawaja, J. are the reasons for our short order dated 4-3-2011, which is reproduced below for
ease of reference:--

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"We have heard these two constitutional petitions at great length. These petitions
relate to the functions of two institutions newly introduced into our Constitution
namely, the Judicial Commission of Pakistan and the Parliamentary Committee. These
two bodies have been created in the newly added Article 175A of the Constitution.

2. Very briefly stated the petitioners have challenged inter alia, the two decisions of
the Parliamentary Committee one in respect of four Additional Judges of the Lahore
High Court and the other in respect of two Additional Judges of the Sindh High Court.
The Judicial Commission had made recommendations for extension in tenure of these
six Judges as Judges respectively of the Lahore and Sindh High Courts. The
Parliamentary Committee has, however, disagreed with the recommendations of the
Judicial Commission and has decided not to recommend the names of these six Judges
for appointment as Judges respectively of the Lahore and Sindh High Courts.

3. During extensive arguments advanced by learned counsel for the parties including
the preliminary objection raised by the learned Additional Attorney General objecting
to the maintainability of these petitions, we have examined the newly added
constitutional provisions and more specifically Article 175A of the Constitution. We
have also considered the case law copiously cited before us. We have, however,
consciously confined our consideration of these petitions and arguments advanced, to
the specific facts and circumstances of these cases. Having considered the same, for
detailed reasons to be recorded later, these petitions are allowed in the following
terms:-

(a)? We declare that the decision of the Parliamentary Committee, whereby the names of
the aforesaid six Judges were not confirmed for extension in their tenure, are not in
accordance with the provisions of the Constitution;

(b)? as a result of the above, we set aside the decision of the p Parliamentary Committee
dated 2-2-2011 in respect of four Additional Judges of the Lahore High Court namely,
Justice Mamoon Rashid Sheikh, Justice Muhammad Farrukh Irfan Khan, Justice Syed
Mazahar Ali Akber Naqvi and Justice Muhammad Yawar Ali and the decision of the
Parliamentary Committee dated 22-2-2011 in respect of two Additional Judges of the
Sindh High Court namely, Justice Salman Hamid and Justice Muhammad Tasnim;

(c)? consequently, we direct the respondents to implement the recommendations of the

Judicial Commission in respect of the four above named Judges of the Lahore High
Court and the recommendations of the Judicial Commission in respect of the two
above named Judges of the Sindh High Court and to issue notifications for the
appointment of the said Judges in consonance with the recommendations of the
Judicial Commission".

Sd/- Mahmood Akhtar Shahid Siddiqui, J.

I have added a concurring opinion setting out my additional reasons in support of the
Order of 4-3-2011.

Sd/- Jawwad S. Khawaja, J.

I agree with the opinion recorded by my learned brother Jawwad S. Khawaja, J.

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Sd/- Khilji Arif Hussain, J.

I have had the benefit of going through the detailed reasons given by my learned
brothers Mr. Justice Mehmood Akhtar Shahid Siddiqui and Mr. Justice Jawwad S.
Khawaja. I am in agreement with the opinion and reasons recorded by my learned
brothers. However, I withhold my comments to that part of the reasoning of Mr.
Justice Jawwad S. Khawaja, which deals with the status of the Parliamentary
Committee with reference to Article 69 of the Constitution of Islamic Republic of
Pakistan for the reason that this issue is subjudice before 17-member bench of this
Court seized of challenge made to 18th Amendment of the Constitution.

Sd/- Tariq Parvez, J

JAWWAD S. KHAWAJA, J.---I have had the benefit of going through the reasoning of my
learned brother M.A. Shahid Siddiqui, J. in support of the short order dated 4-3-2011. I am in
agreement with his conclusions but am adding this concurring opinion setting out my
additional reasons in support of the aforesaid order dated 4-3-2011.

2. These two constitutional petitions concern the functioning of two institutions newly
introduced into our Constitution: the Judicial Commission of Pakistan ("Commission") and
the Parliamentary Committee ("Committee"), The petitions are being heard and decided
together because they raise similar legal and constitutional issues.

3. The Commission consists of, among others, the Chief Justice of Pakistan, the four senior-
most Judges of this Court, the Chief Justice of the concerned High Court, the Federal Minister
for Law and Parliamentary Affairs, the Attorney General .for Pakistan and the representatives
of the legal fraternity [Article 175A(2)]. The Committee consists of eight parliamentarians
divided equally between the Treasury Benches and the Opposition Benches [Article 175A (9)
and (10)]. Both, the Commission and the Committee were created under Article 175A of the
Constitution which assigned specified functions to the two Constitutional bodies through the
Constitution (18th Amendment) Act, 2010 as amended by the Constitution (19th Amendment)
Act, 2010. These constitutional amendments changed the earlier process for making judicial
appointments in the Supreme Court, the Federal Shariat Court and the High Courts. Article
175A along with certain other provisions in the Constitution are separately' subject to
challenge in a number of Constitutional Petitions which have been heard, and are still under
consideration before a larger seventeen-member Bench of this Court.

4. In the present cases, however, the petitioners have not questioned the wires of these
constitutional amendments. Therefore, the validity of these amendments, which created the
Commission and the Committee, is assumed. The challenge in these petitions is directed
instead at the functioning of the Committee. In particular, two specific decisions of the
Committee have been assailed by the petitioners. In brief, these decisions relate to the refusal
of the Committee to confirm the nominations made by the Commission for the renewal of
tenure of four additional Judges of the Lahore High Court and two Additional Judges of the
Sindh High Court. By means of a short order dated 4-3-2011, we have allowed these petitions
and, as 'a consequence, have set aside the impugned decisions. This opinion provides my
reasons in support of the short order.

5. To facilitate understanding, the reasons in this opinion have been divided into sections. The
first relates to the maintainability of, these petitions; the second section sets out the relevant
rules of Constitutional interpretation; the third section deals with the question of justifiability

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and the basis, for exercising our power to review the decisions of the Committee; and the
fourth and final section states the ground on which we exercise review and applies all the
constitutional principles discussed in the earlier sections, to the circumstances in which these
petitions have arisen, justifying the short order of 4-3-2011.

MAINTAINABILITY

6. We must first address a preliminary objection against the maintainability of these petitions,
which has been raised by the learned Additional Attorney General on behalf of the Federation.
The petitioners have invoked the jurisdiction vested in this Court under Art. 184(3) of the
Constitution. Mr. K.K. Agha, learned Additional Attorney General for Pakistan has argued
that the jurisdiction of this Court under the said Article can only be invoked where "a question
of public importance with reference to the enforcement of any of the fundamental rights" is
involved. He submitted that no such question arises in these petitions; and the same are,
therefore, not maintainable. For facility of reference, Article 184(3) of the Constitution is
reproduced as under:-

"184???? ??

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of
any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the
power to make an order of the nature mentioned in the said Article ".

7. The learned Additional Attorney General further argued that an issue could only be agitated
before this Court, under the aforesaid Article, if "public importance" in relation to such issue
had been proved by the overt demonstration of interest therein by the general public; either by
people openly demonstrating their interest, possibly by coming out on the streets, or by
engaging in animated debates in the print and electronic media. And, since, according to the
learned Additional Attorney General, the impugned decisions of the Parliamentary Committee
have not generated any such demonstrations of public interest, this matter may not be
considered as one which involves "public importance".

8. To begin with, the factual veracity of this claim made on behalf of the Federation is
questionable. The nominations made by the Judicial Commission and the refusal of the
,Parliamentary Committee to confirm the same appear to have generated considerable public
interest, providing a great deal of material for debate in the public, the media and the legal
fraternity. The Bar Associations of the High Courts in the country have also debated the
impugned decisions of the Committee. The Sindh High Court Bar Association, which is itself
a petitioner in Constitution Petition No.18 of 2011, has placed on record its resolution dated
23-2-2011 "condemning" the action of the Committee. The proceedings in these petitions and
the short order of 4-3-2011 have also made headlines in the print and the electronic media.
More so, critical comments on our order dated 4-3-2011 have been carried prominently in the
media. We, therefore, find little substance in the factual assertion advanced by Mr. K.K. Agha.

9. More importantly, however, under the law, this factual claim is quite irrelevant for
answering the present question, which is: does the case before us involve "a question of
public importance with reference to the enforcement of any of the Fundamental Rights"?
Article 184(3) ibid empowers this Court to exercise jurisdiction thereunder whenever the
Court considers a matter to: (i) be of public importance and'(ii) that it pertains to the
enforcement of fundamental rights. The determination on 'both these counts is to be made by

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this Court itself, keeping the facts of the case in mind. That this case involves a question
which relates to the "enforcement of fundamental rights" has not been seriously questioned.
The learned Additional Attorney General acknowledged that only an independent Judiciary
can enforce the fundamental rights enshrined in our Constitution. He also conceded that
without an independent mechanism for enforcing fundamental rights, the contents of Chapter
1 (Fundamental Rights) of Part-II of the Constitution would become meaningless. A wealth of
jurisprudence is also available on this subject. The issue, therefore, which has to be addressed
while deciding the respondent's preliminary objection is whether or not these petitions raise
issues of public importance.

10. Furthermore; in making this determination, the Court is not to be swayed by expressions
of public sentiment nor is it to conduct an opinion poll to determine if the public has any
interest in an issue being agitated before the Court under Article 184(3) of the Constitution.
Instead, a whole range of factors need to be kept in mind, which have, over the years, been
expounded in numerous precedents of this Court. It is important to keep these precedents in
view because, as noted in an earlier judgment, "[i]t is through the use of precedent that the
contours of the law are constantly defined. The Constitution of Pakistan, through Article 189,
recognizes the significance of judicial precedent in the acknowledged tradition of a Common
Law jurisdiction." (Re: Suo Motu Case No.10 of 2009 reported as 2010 SCMR 885, 921). A
review of the precedents that enunciate the scope of Article 184(3) makes it clear that contrary
to the import of Mr. Agha's submission, "overt expression of public interest" or "street
demonstrations and vigorous media debate" have not been considered necessary factors for
the exercise of jurisdiction over a case under the said Article.

11. The precedents which were referred to, in this regard, by Mr. Makhdoom Ali Khan,
learned counsel for the petitioners, can now be briefly adverted to. In the first Al-Jehad case
reported as Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and
others v. Federation of Pakistan and others (PLD 1996 SC 324) a five member Bench of this
Court observed that the process of making judicial appointments was inextricably linked with
the independence of the Judiciary; and since the latter was a matter of public importance, in
the circumstances, it was held that the petitioner had "rightly invoked the jurisdiction of this
Court under Article 184 (3) of the Constitution". Therefore, questions which require the
interpretation of newly added provisions in the Constitution relating to judicial appointments
would quite clearly be matters of public importance.

12. The fact that independence of the judiciary is a matter of public importance has also been
firmly established in our jurisprudence. In one of the more recent cases on the issue, Khalil ur
Rehman Ramday, J., expressed this point eloquently as follows: the judiciary was... an affair
of the public; any offence to its independence would be an encroachment on the right of the
people to access justice and finally that the security of service and of the tenure of the judges
was critical for the said independence. (Chief Justice of Pakistan v. President of Pakistan,
PLD 2010 SC 61 at page 121). Similar views have been expressed inter alia, in Watan Party v.
Federation of Pakistan and others (PLD 2006 SC 697), Malik Asad Ali and others v.
Federation of Pakistan and others (PLD 1998 SC 161 at page 247 para 55) and Sindh High
Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879 at
page 1143, 1185).

13. Here we may also refer to an academic comment on this Court's past precedents, dealing
with the interpretation of Art 184(3). The well researched and referenced comment in `Public
Interest Litigation in Pakistan (Alam, Rafay; ed. Minski, Alam and Raza, Platinum and

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Pakistan Law House 2000) reproduced below demonstrates that cases dealing with judicial
appointments have consistently been considered matters of public importance:--

"[the] Supreme, Court has decided [in], Shahida Zahir Abbasi v. President of .
Pakistan, PLD 1996 SC 632, at p.659, per Saiduzzaman Siddiqui J, that matters of
public importance may be deduced on a case-by-case basis... However, even on a
case-?by-case basis, some general principles still emerge. Matters relating to the
judiciary have regularly been held to be of public importance. This was, for example,
already held by Ajmal Mian, C.J. (as he then was) in Sharaf Faridi v. Federation of
Pakistan, PLD 1989 Kar. 404, at p. 425. In Abdul Matin ) Khan v. N.-W.F.P., PLD
1993 SC 187, at p.191, it was held by Muhammad Afzal Zullah CJ that an issue that
could considerably damage `the very fabric of independence and separation of
judiciary' amounted to a matter of great public importance. This position was
confirmed more recently in Al-Jehad Trust v. Federation of Pakistan, PLD 1996 SC
324, p. -425 by Sajjad Ali Shah CJ, holding that questions of interpretation of the
Articles of Constitution relating to the judiciary were undoubtedly a matter of pubic
importance. "(ibid. 55)

14. In response, the learned Additional Attorney General has submitted that the case law cited
by the learned counsel for the petitioners is not applicable in the present case because it
relates to the previous process for appointment of Judges; and, therefore, after the 18th and
the 19th Amendments, it is no longer relevant. This contention is misconceived. There has
been no change or amendment made in Article 184 (3) of the Constitution. Thus, precedents
which examine and pronounce upon the scope of the said Article remain relevant. Therefore,
in line with Article 189 of the Constitution, the principles of law enunciated by this Court in
respect of Article 184 (3) of the Constitution provide the surest guidance that these petitions
raise issues which must be decided by this Court in the exercise of its jurisdiction under the
said Article. Thus, under Art 184(3) of the Constitution, not only is this Court possessed with
the power to adjudicate this matter, but it must, as a matter of duty, exercise jurisdiction over
this case.

15. In addition to the above considerations, we would like to note that judicial appointments
in two provinces, namely the Punjab and Sindh, have been so far called in question in these
two petitions. This is, therefore, a fit occasion for this Court to interpret Article 175A of the
Constitution, as amended; thereby enabling Constitutional bodies such as the Commission
and the Committee (and their respective functionaries) to perform their roles in accordance
with the Constitution.

16. Before parting with our discussion on the maintainability of these petitions we may note
that there have been cases where this Court has declined to exercise jurisdiction under Article
184 (3) of the Constitution. Mr. K.K. Agha referred to the case titled Jamat-e-Islami through
Amir and others v, Federation of Pakistan and others (PLD 2008 SC 30) wherein exercise of
jurisdiction had been declined. Mr. Makhdoom Ali Khan provided us a list of six other
reported cases (referred to below) where the Supreme Court decided that the circumstances
did not warrant exercise of jurisdiction under Article 184(3) ibid as the petitions in those cases
did not meet the dual criteria of (a) public importance and (b) enforcement of fundamental
rights. These cases are Munir Bhatti v. Federation of Pakistan (Constitutional Petition No. 10
of 2011), Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66 at page 79, 128, 144 and
159), Shahida Zaheer Abbasi v. Federation of Pakistan (PLD 1996 SC 632 at page 659 and
662 sideline G and H), Syed Zulfiqar Mehdi v. PIAC (1998 SCMR 793 at page 799, 800, 801
sideline A, B, C and D),, Watan Party v. President of Pakistan (PLD 2003 SC 74 at page 81,

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sideline D and E), Mian Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC
583 at page 596 para 18-19, page 597, 598 para 22) and APNS v. Federation of Pakistan (PLD
2004 SC 600 at 619W, 621AA). None of these seven cited cases, however, related to the
independence of the Judiciary or to the process of judicial appointments, the same are
distinguishable on this ground alone.

170 Based on the foregoing discussion and review of precedents, we are not left in any doubt
that these cases are eminently suitable for the exercise of jurisdiction under Article 184(3) of
the Constitution.

CONSTITUTIONAL INTERPRETATION:

18. Having decided the question of maintainability, we must now proceed to the task of
interpreting Article 175A, which is the subject of contention in the present petitions. A great
deal of stress was placed by the learned Additional Attorney General representing the
Federation, on the decontextualised wording of this Article. His argument has been separately
dealt with in a later part of this opinion, but can be summarized here. According to him,
because Article 175A does not provide for the justiciability of the decisions of the Committee,
and to this extent, deviates from the Order dated 21-10-2010 (considered below) passed by a
seventeen-member Bench of this Court,, we should construe Article 175A as ousting the
jurisdiction of this Court and its power to call in question the decisions of the Committee. The
learned Additional Attorney General's submission, however, finds no force in our
constitutional jurisprudence, where it is by now well settled that the Constitution has to be
read holistically as an organic document. For this we need to go no further than the opinion
expressed in the Al-Jehad case supra.--

"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 requirements
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." [A1-Jehad Trust case (PLD
1996 SC 324 at page 429)1.

19. Here it may also be added that notwithstanding the reliance of the learned Additional
Attorney General on Article 175A as a stand-alone provision, the Attorney General in his
written submissions made before the above-referred larger Bench, acknowledged as a well
settled legal rule "that the Constitution is to be read as a whole and that it is the duty of the
Court to have recourse to the whole instrument in order to ascertain the true intent and
meaning of any particular provision".

20. But what does the word `organic' connote when referring to the Constitution? Although
the term has been repeatedly used in various precedents from our own jurisdiction, the
meaning, implication and rationale of requiring the Constitution to be read as an `organic
document' has not been explained fully. It is thus necessary to define this concept in order to
examine and interpret Article 175A which has now been added in the Constitution.

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21. We have been guided by precedent to follow the rule that individual Articles or clauses of
the Constitution, if read in isolation from the rest of the Constitution, may mislead the reader.
This is so because the meaning of the Constitution is to be gathered from the Constitution as
an integrated whole, based on reason. The logic and wisdom of this approach should be self
evident, but can be highlighted for the edification of those inclined to a contrary view focused
solely on an insular reading of Article 175A. This can be done by narrating a simple tale from
the enlightened tradition of our sages. In his Masnavi Maulana Jalaluddin Rumi recounts the
story of five men on a dark night who, groping and touching different parts of an elephant's
anatomy, construct an image of the animal variously as a fan (by the one who managed to
touch only its ears), a tree trunk (by the other getting a feel of its leg), a gargoyle (by yet
another who touched and felt its snout) and so forth. The inability of each man to look at the
elephant holistically is obvious. As the Maulana says, these men in the dark did not have a
lamp to show them that the elephant was one composite organism, whose constituent
components were to be seen together if the whole was to be understood, without errors of
perception. The Greek ancient, Hippocrates (quoted by Eduardo Galeano in his book
"Mirrors"), in the same vein, said that "the nature of the parts of the body cannot be
understood without grasping the nature of the organism as a whole". It is, therefore, crucial
for us, consistent with reason, to look at the Constitution as a whole if we are to make sense
of Article 175A `organically'. Looking at the Constitution any other way would lead the
reader astray.

22. The rationale for this rule is also universal and transcends the divide between the various
prevalent systems of law. Thus it is that we have common law constitutionalists such as
Laurence Tribe and Michael Dorf warning us against "approaching the Constitution in ways
that ignore the salient fact that its parts are linked into a whole that it is a Constitution, and
not merely an unconnected` bunch of separate clauses and provisions with separate histories
that must be interpreted. "(Tribe, Lawrence H.; Dorf, Micheal C., "Chapter 1: how not to read
the Constitution" on reading the Constitution, Harvard University Press, Cambridge, 1991).
This very same logic also informs the comment of a scholar like Dr. Conrad from the
European Civil Law tradition, who reminds judges and lawyers "that there is nothing like safe
explicit words isolated from a general background of understanding and language. This is
particularly so in the interpretation of organic instruments like a Constitution where every
provision has to be related to the systemic plan, because every grant and every power
conferred is but a contribution to the functioning of an integrated machinery... it will not do to
discuss such concepts as [mere] `political theory' irrelevant to textual construction ".
("Limitation of Amendment Procedures and the Constituent Power;" the Indian Yearbook of
International Affairs, 1967. P.375)

23. Undeniably, Article 175A fits into, and has to be read as part of, the larger Constitutional
scheme and not as an insular "bunch of separate clauses and provisions", or as a self-
contained island within the Constitution, unconnected with its other parts. The importance of
reading the Constitution as an organic whole, in the context of these petitions, will become
more apparent in the succeeding sections of this opinion.

JUSTICIABILITY

24. Having set out the basic principle of Constitutional interpretation, we can now proceed to
consider if this Court is empowered to judicially review the decisions of the Parliamentary
Committee. The petitioners in these cases have argued that the decisions of the Committee are
justiciable while the Federation's stance is that this Court has no power to review such
decisions. As a fall-back, it was submitted by the learned Additional Attorney General that

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even if the Court concludes it has the power, it should exercise restraint in these cases and
decline to, interfere in the two decisions being assailed by the petitioners.

25. To resolve the first contention raised above, we must start by examining the text of the
Constitution itself, as amended by the 18th and 19th Amendments, because the text suggests
an answer to the question before us. To facilitate understanding, Article 175A as originally
worded (to the extent relevant to our discussion), is juxtaposed alongside the Article as
amended by the 19th Amendment.

Eighteenth Amendment Nineteenth Amendment

175A 175A
Appointment of judges to the Appointment of judges to the Supreme
Supreme Court, High Courts Court, High Court and the Federal Shariat
and the Federal Shariat Court: Court.
(1) .... (1)
(2) .... (2)
(3) .... (3)
(4) .... (4)
(5) .... (5) ....
(6) .... (6)
(7) .... (7)
(8) .... (8)
(7) ... (7)
(8) ... (8)
(9) The Parliamentary (9) The Parliamentary Committee,
Committee, hereinafter in this Article referred
hereinafter in this to as the Committee, shall consist
Article referred to as of the following eight members,
The Committee, shall namely:-
consist of the
Following eight
members, namely :-
(i) Four members from (i) four members from the Senate;
the Senate; and and
four members from the National
Assembly.
(ii) Four members from (ii)
The National
Assembly.

Provided that when the National

Assembly is dissolved, the total
membership of the Parliamentary
Committee shall consist of the
members of the Senate only
mentioned in paragraph (i) and
the provisions of this Article
shall, mutatis mutandis apply.

(10) (10)

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(11) ... (11)

(12) The Committee on receipt of a (12) The Committee on receipt of a
nomination from the Commission nomination from the Commission may
may confirm the nominee By confirm the nominee by majority of its
majority of its Total membership total membership within fourteen
within fourteen days, failing which days, failing which the nomination
the nomination shall be deemed to shall be deemed to have been
have been confirmed: confirmed:
Provided that the Committee may not Provided that the Committee, for
confirm the nomination by three reasons to be recorded, may not
fourth majority of its total Confirm the nomination by three-
membership within the said period, in fourth majority of its total membership
which case the Commission shall within the said period:?? Provided
send another nomination. 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) (13)
(14) ... (14)
(15) .... (15) The meetings of the Committee
shall be held In camera and the record
of its proceeds shall be maintained.
(16)
(17) ....

It will be noticed that the 19th Amendment has inter alia, added the following two provisos to
clause (12) of Article 175A:

"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..."
?
Also, a new clause. (15) has been added to Article 175A which states:--

"The meetings of the Committee shall be held in camera and record of its proceedings
shall be maintained." (Emphasis supplied)

26. The repeatedly emphasized imperative of maintaining a record both of the proceedings of
the Committee and of the "reasons" behind its decisions, very strongly suggests that the
Committee's decisions were intended to be subject to judicial review. Otherwise, if the
Committee's decisions were meant to be non-justiciable, and beyond judicial scrutiny, the
insistence on recording reasons would not make much sense. It is an established rule of
interpretation that Parliament does not waste words and redundancy should not be imputed to

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it. This principle would apply with even greater force to the Constitution the supreme law of
the land. On this point Mr. K. K. Agha was hard pressed to respond. It will be seen that even
an insular reading of this Article, leaves the impression that the decisions of the Committee
are subject to review. He, however, argued that even though the 19th amendment had required
the Committee to give reasons for its decisions, it did not make any provision for these
decisions to be challenged in a court of law.

27. The above submission was augmented by Mr. K. K. Agha, by adverting to the Order of
the seventeen-member Bench dated 21-10-2010 wherein it had, inter alia, been said that "in
case of rejection of nomination by the Parliamentary Committee ... [it] shall have to state
reasons which shall be justiciable". The gist of this argument appears to be that in view of the
order of the larger Bench, this Court should infer that through the 19th amendment, it was
intended by Parliament that decisions taken by the Parliamentary Committee should not be
subject to judicial review. Such inference was sought on the basis that the suggestion in the
aforesaid Order as to justiciability was not incorporated in the amended Article. The argument
of the learned Additional Attorney General, based on implication and not on the wording of
Article 175A as amended, is contrary to the jurisprudence that has evolved in our jurisdiction.
Furthermore, the argument ignores the legal precept explained above that the Constitution has
to be construed as an organic whole.

28. There is a vast body of precedent in our legal corpus which has consistently held that the
Court's jurisdiction may only he ousted through express words in a legal text. This principle
of law is by now well waled. Even Mr. Agha did not give any valid reason to question this
legal principle or to show that it does not apply to the circumstances of this case. On the other
hand, any number of cases can be cited in support of the argument advanced by learned
counsel for the petitioners that while interpreting a legal text, ouster of jurisdiction should not
be inferred. Reference, however, may be made to just a few cases decided by this Court: the
first being Additional Collector Sales Tax v. Abdullah Sugar Mills Ltd. (2003 SCMR 1026),
wherein it was held that ouster of jurisdiction is to he seen from express words which should
not be implied except where absolutely necessary. Likewise, in the case titled Muhammad
Ismail and others v. The State (PLD 1969 SC 241 at page 246A) it was held that unless very
explicit words are used in a legal provision to oust the jurisdiction of the Court, such an
intention would not be normally imputed to the legislature. Maxwell on the Interpretation of
Statutes was also cited wherein it has been commented that "...a [strong] leaning now exists
against construing a statute so as to oust or restrict the jurisdiction of the superior Courts"
(11th Edition page 122). This rule is applicable with even more rigour while interpreting
Constitutional provisions. As was held by this Court in Faziul Quader Chaudhry v.
Muhammad Abdul Haq "[t]here is need for greater strictness in a case where the bar to the
jurisdiction of the courts relates to the interpretation of the provisions of the Constitution,' a
Constitution which by their oaths the judges are bound to protect and preserve. "(Faziul
Qauder Chaudhry v. Muhammad Abdul Haq PLD 1963 SC 486)".

29. Furthermore, in line with the rationale for considering the Constitution holistically, it may,
at this point, be added that our Constitution is no stranger to ouster clauses. Mr. Makhdoom
Ali Khan has drawn our attention to no less than seventeen provisions in the Constitution
which, through express wording purport to exclude the jurisdiction of the Court in certain
matters. Some of these provisions can briefly be adverted to, with the object of showing that
whenever it has been intended to oust the jurisdiction of the Court, express provision has been
made in the Constitution for this purpose. Article 41(6) stipulates that "the validity of the
election of the President shall not be called in question by or before any Court or authority".
Article 48(3), inter alia, provides that questions relating to advice tendered to the President by

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the Cabinet "shall not be inquired into in, or by, any Court ..." Article 165A(2) similarly
stipulates, inter alia, that orders etc., made prior to the commencement of the Constitution
(Amendment) Order, 1985 "... shall not be called in question in any Court including the
Supreme Court and a High Court, on any ground whatsoever".

30. There are several other provisions in the Constitution such as Article 211, Article 236(2),
Article 245(2) and Article 270A which contain wording purporting to expressly oust the
jurisdiction of a court in respect of matters specified in these provisions. It must, however, be
noted that even where such express language has been used in the Constitution, there is
consistent precedent to demonstrate that such provisions have not been construed as providing
for an absolute ouster of the Court's jurisdiction. In this respect, reference may be made to the
cases of Central Board of Revenue and another v. S.I.T.E. (PLD 1985 SC 97) and Chief
Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of .Pakistan and others (PLD
2010 SC 61), Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and
others (PLD 1999 SC 57) and Federation of Pakistan and another v. Malik Ghulam Mustafa
Khar (PLD 1989 SC 26). In these cases the Court did exercise jurisdiction (though for limited
purposes) notwithstanding the language purporting to oust its jurisdiction.

31. On a review of the Constitution and the ouster clauses provided for in the various Articles
of the Constitution and applying the ratio of the precedents cited above, we can only conclude
that the absence of similar wording in Article 175A must be construed as reinforcing the view
that Parliament did not intend to oust the jurisdiction of this Court to review the decisions of
the Committee.

32. At this point it will also be useful to understand the nature of the decisions of the
Committee, which have been assailed before us. As argued by the petitioners, and not
contested by the learned Additional Attorney General, these decisions of the Committee are,
by their nature, executive decisions. The fact that these decisions have been taken by persons
who also happen to be parliamentarians, does not alter the nature of the decisions. Although
this issue was not contested, we nonetheless would like to supplement our conclusion with
reasons. The task which the Committee is meant to undertake is part of the process of making
judicial appointments. The nature of such task has previously been the subject of contention
and adjudication in this Court wherein it has been held that the matter of making judicial
appointments is, in essence, an executive function. Reference in this behalf may be made inter
alia, to the Al-Jehad and Sindh High Court Bar cases. Therefore, the Committee, for reasons
to be explained shortly, must not be seen as a `parliamentary' committee properly speaking;
rather, in constitutional terms, it is a committee of parliamentarians, acting independently as a
Constitutional body in an executive capacity.

33. Although the eight member Committee has been given the appellation of "Parliamentary
Committee", it is important to bear in mind that the status of a constitutional body is not to be
determined by the name given to it. This to be determined by the functions it performs and the
place it occupies in the Constitutional order. It is important to state with clarity the status of
the Committee created under Article 175A and, in the process, to allay any misconceptions
about it. For this purpose, we need to look no further than the Constitution itself. Article 50
thereof creates Parliament by stipulating that "[t]here shall be a Majlis-e-Shoora (Parliament)
of Pakistan consisting of the President and two houses to be known respectively as a National
Assembly and the Senate". The said Article and each subsequent Article of the Chapter
relating to Parliament (Chapter 2 of Part III) do not envision or refer to the Committee under
Article 175A. The only committees mentioned in this Chapter are the Finance Committees of
the two Houses recognized under Article 88 (2) of the Constitution. Article 88(2) stipulates

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that "[t]he Finance Committee shall consist of the Speaker or, as the case may be, the
Chairman, the Minister of Finance and such other members as may be elected thereto by the
National Assembly or, as the case may be, the Senate". The Finance Committees are part of
the two Houses which elect them and act merely to render advice. Article 88 thus provides a
very significant pointer towards the status, nature and essential features of a committee, which
can properly be designated as a parliamentary committee.

34. On the other hand, Article 175A has set up an independent constitutional body having a
specific role assigned to it relating to the appointment of Judges of this Court and of the High
Courts. This constitutional body, as adverted to above, has been referred to as a s
Parliamentary Committee but it is neither part of Parliament when acting under Article 175A
nor is it elected by or answerable to Parliament. An examination of the Constitution and
established Parliamentary practice will further demonstrate this distinction between the
Committee set up under Article 175A and a parliamentary committee. By virtue of Article 67
of the Constitution, each House of Parliament may "make rules for regulating its procedure
and the conduct of its business". This authority has been exercised by both Houses of
Parliament and as a result, rules have been framed. The upper House has framed the "Rules of
Procedure and Conduct of Business in the Senate 1988" (the `Senate Rules') while the
National Assembly has adopted its own rules known as the "Rules of Procedure and Conduct
of Business in the National Assembly, 2007" (the `Assembly Rules'). From the Senate Rules
and the Assembly Rules, it is very clear that a parliamentary committee is a body elected by
the respective houses of Parliament and" answerable to such houses. For instance, the
Assembly Rules in Rule 200, state that "[e]xcept as otherwise provided in these rules, each
Committee shall consist of not more than seventeen members to be elected by the Assembly
within thirty days after the ascertainment of the Leader of the House." Likewise, the Senate
Rules in Rule 145(1) provide that "[e]ach Committee shall consist of not less than six
members and not more than twelve members to be elected by the Senate..."

35. The use of Committees by Parliament is, an old and well established practice which was
adopted during the colonial era and finally was given Constitutional status under the 1973
'Constitution. Legislation and parliamentary decision making are facilitated through
consideration in Committee (rather than the entire House) of proposed legislation and the
performance of other roles entrusted to Parliament. The role of a Parliamentary Committee is
simply to examine such legislation or other proposed Parliamentary action. It is the
Parliament alone which is empowered to pass legislation or exercise such functions which the
Constitution entrusts to it. Thus, a Parliamentary Committee as properly understood in our
Constitutional scheme simply facilitates Parliament in the performance of its legislative and
Constitutional functions-acting as a mere delegate or in the case of the Finance Committee, as
an advisor to the House which has elected it. Crucially though, for our present discussion, a
real parliamentary committee is elected by each of the Houses of Parliament and is a
subordinate sub-set of the entire House, accountable to the House it belongs to.

36. In stark contrast, the Committee established under Article 175(9) of the Constitution is
comprised of eight Hon'ble Members (four from each House) who are neither elected by the
houses of Parliament nor are they in any manner answerable or accountable to either of the
said houses. It is in this sense that the larger Bench of this Court vide its order dated 21-10-
2010 has adverted to the Committee as a "Committee of Parliamentarians" to distinguish this
constitutional body from a parliamentary committee as understood and defined in the rules of
procedure and conduct of business of the two houses. This distinction is also important to
note while addressing the issues raised in these petitions.

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37. It appears to us that the essential distinction between a parliamentary committee (elected
and answerable to Parliament) and a nominated Constitutional 'body, not answerable to
Parliament has not been kept in view in the Federation's stance before us. If this fundamental
distinction is considered in the light of Article 69 of the Constitution, we will be further
reinforced in our opinion that the Committee's decisions have not been put beyond the pale of
judicial review. Article 69 ibid, for ease of reference is reproduced as under in relevant part:

"69. Courts not to inquire into proceedings of [Majlis-e-Shoora (Parliament)].--- (1)

The validity of any proceedings in [Majlis?e-Shoora (Parliament)] shall not be called
in question on the ground of any irregularity of procedure.

(2) No officer or member of [Majlis-e-Shoora (Parliament)] in whom powers are

vested by or under the Constitution for regulating procedure or the conduct of
business, or for maintaining order in [Majlis-e-Shoora (Parliament)], shall be subject
to the jurisdiction of any court in respect of the exercise by him of those powers ".

38. It would be obvious from a plain reading of the above provisions that the limited ouster of
jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of
business of the Parliament. The decisions of the Committee (even if comprised of persons
who are honorable members of Parliament) cannot be considered immune from judicial
scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the
Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is
independent of and separate from Parliament notwithstanding its composition. It performs, as
noted above, an executive function relating to the Judiciary and, therefore, has been placed in
the Chapter relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora
(Parliament)] dealing with Parliament.???

39. The justiciability of the decisions of the Parliamentary Committee can also be approached
from another angle, which would be manifest from a holistic examination of the Constitution.
The governance of state organs in Pakistan is based on checks and balances where the powers
of each organ are counter-balanced by some other organ of the State. Thus, executive action
taken by the various administrative and executive functionaries of the State can be called in
question, inter alia under Articles 199 and 184(3) of the Constitution. Such executive action
may additionally be subject to Parliamentary review and over-sight in our parliamentary
system of governance. Legislative action can also be called in question in Court, inter alias on
the touchstone that it is violative of the Constitution. Likewise, decisions rendered by this
Court can be modified or reversed by legislation (in recognized circumstances) and such
legislation may also be retrospective. Thus we see that each organ of the State, be it the
Judiciary, the Executive or the Legislature, operates under constitutional constraints which
effectively make these organs of State limited in their actions.

40. If it is accepted, as urged by the learned Additional Attorney General, that the decisions of
the Committee are not amenable to judicial review, a truly unique status higher than the
Executive, the Judiciary and Parliament, will have to be accorded to this nominated
Committee, outside the matrix of checks and balances that constrain the Parliament, the
Executive and the Judiciary. This will be so because in such event, the Committee will not be
subject to any check as it is already not answerable for its decisions either to Parliament or to
the highest t functionaries of the Executive, including the President and the Prime Minister.
Such an interpretation of the Constitution, which places the decisions of the Committee
beyond the pale of review by any other instrumentality or organ of the State would be
contrary to the scheme of the Constitution and with, in effect, vest the Committee with

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untrammelled powers. Bearing in mind the assurance in Parliament that "the fundamental
principles of the Constitution are not altered", it will not be possible to ascribe such powers to'
the Committee, while interpreting Article 175A of the Constitution.

41. To appreciate the above notion with clarity, we need to understand the implications of
affording unbridled powers to the Committee. Here we must make note of the submission
made by the learned Additional Attorney General that the Committee has the power to reject
any nomination of the Judicial Commission (even one unanimously passed) for "any reason
under the sun", and that such a rejection must, in all cases, be deferred to by this Court. The
implication of this extraordinary submission would be that even where a decision of the
Committee has the effect of eroding and undermining the independence of the Judiciary, this
Court will be helpless in checking such erosion. We have already noted that the Committee is
not required to send its decision to the Parliament for approval and, as rightly observed by Mr.
Raza Rabbani on the floor of the House during the debate on the 18th &.19th amendments,
the role and discretion of the Prime Minister and the President as previously envisioned in the
Constitution "has been taken away". We have not been able to find any precedent or
Constitutional principle, and none was suggested by the learned Additional Attorney General,
which would justify the conclusion that the eight-member nominated Committee or, rather a
Committee of Parliamentarians can claim such unchecked authority. Given this, the operation
of the Committee cannot be imagined, in my humble opinion, without the check of judicial
review.

42. This matter may also be decided by looking at the general and historical background to
our Constitution and the case-law which has emerged from it. It is our review of this aspect
which helps us conclusively determine the respective roles of the various constitutional
institutions involved in this case - and thus decide whether, and how far, the decisions of the
Committee are subject to judicial review.

43. Historically, the independence of the judiciary and the separation of powers have been
held to be two of the undeniable foundational principles of our constitutional scheme.
Although, these are principles which also found a place in the 1956 and 1962 Constitutions,
the same have been given unparalleled importance by the framers of the, 1973 Constitution.
This is demonstrated, inter alia, by an extract from the aide memoire of late Mr. Zulfiqar Ali
Bhutto no less, written in defense of the Draft Constitution Bill of 1972 and presented in the
process of finalizing the Constitution which was passed in 1973. It gives us a good insight
into the intent of the framers. The aid memoire declares unambiguously that: "the Judiciary
shall be completely independent of the executive... Indeed, for the first time substantive
provision has been made in the Constitution for the separation of the Judiciary from the
executive ..." (ibid). These principles received recognition in various subsequent judgments of
the superior courts, amongst others, in Sharaf Faridi v. Federation of Islamic Republic (PLD
1989 Kar 404 at p. 427, 428), wherein the Court observed that the 1973 Constitution
"contemplated the trichotomy of power between the three organs of the state, namely, the
legislature, the executive, and the judiciary... it was envisaged that the judiciary would be
independent and separate from the other organs of the state... ". Later, in the Al-Jehad Trust
case, this Court dealt with these principles in detail wherein the Court observed in clear terms,
"... that the Judiciary shall be independent." (Pg. 429; para 23) And again in Zafar Ali Shah's
case (PLD 2000 SC 869), the Court declared: "The independence of the judiciary is a basic
principle of the constitutional governance in Pakistan." More recently, in 'Chief Justice of
Pakistan Iftikhar Muhammad Chaudary v. President of Pakistan through Secretary and others
(PLD 2010 SC. 61): on page 173, it was held "... that [the] independence of the judiciary was
a basic and a salient feature of the constitution."

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44. Similarly, the Courts have repeatedly declared that this "independence of the judiciary"
which the Constitution assures us, depends directly on the process of the appointment,
removal and security of tenure of judges. In the Al-Jehad Trust case, this Court reiterated that
"... the independence of Judiciary is inextricably linked and connected with the Constitutional
process of appointment of Judges of the superior Judiciary" (ibid 429). In the Mehram Ali
case (PLD 199$ SC 1445 at page 1477), this Court further held that the terms, conditions and
security of tenure of Judges is also central to the independence of the judiciary. And, recently
in the Chief Justice's case, it was reaffirmed that: "security of office of judges and of its tenure
was a sine qua non for the independence of judiciary..." (PLD 2010 SC 61). Indeed it is an
undisputed tenet of our Constitutional scheme that in matters of appointment, security of
tenure and removal of Judges the independence of the Judiciary should remain fully secured.
We are in respectful agreement with these tenets as expounded in the cited precedents.

45. If we also consider the constitutional jurisprudence of this Court which relates specifically
to the issue of appointment of judges, we notice that prior to the 18th amendment, it was well
settled as a principle that the executive organ of the State was obliged to give reasons for its
decisions if it chose to differ with the opinion of the Chief Justice of Pakistan. It was also well
settled that the reasons given by the executive organ of the State were justiciable. The
touchstone and scope of justiciability and the limits of the executive authority to differ from
the opinion expressed by the Chief Justice of Pakistan also came to be well defined in the
context of Article 193 of the Constitution which related to the appointment of Judges of the
High Courts. It is, thus, beyond doubt that the constitutional principles relating to the
independence of the judiciary were already well-settled at the time the 18th and the 19th
amendments were tabled in Parliament; and for reasons adverted to above and to be further
explained shortly, these principles remain fundamentally unaltered even after the above-
mentioned amendments, notwithstanding the changes in the procedure for making judicial
appointments.

46. To appreciate the continuing relevance of the above-mentioned foundational principles in

the interpretation of Article 175A, we can advert to the debate on the floor of the National
Assembly during the passage of the 18th Amendment. It may be clarified in passing that in
our jurisprudence, it is by now well established that Parliamentary debates can also be
resorted to (in certain situations) to ascertain the meaning of any legal text. Thus, in the case
titled Hakim Khan and others v. Government of Pakistan and others (PLD 1992 SC 595), A
and B Food Industries Limited v. Commissioner of Income Tax/Sales, Karachi (1992 SCMR
663) and Messrs Gadoon Textile Mills and others v. WAPDA and others (1997 SCMR 641),
the Court looked at legislative debates to ascertain the meaning of, and to resolve the issues
arising from, legal provisions being considered by the Court. Indeed, the learned Additional
Attorney General also agreed, and was quite insistent, that resort should be made to such
debates.

47. In the context of the present petitions, of particular significance is a speech made by Mr.
Raza Rabbani, Chairman of the Special Committee of the Parliament for Constitutional
Reform, given on the floor of the National Assembly. He' was quite categorical in clarifying
that it was not the intention of the 18th and 19th amendments to alter the fundamental
principles of the Constitution. He said: "... before I go into the details of this Article [175A],
let me once again reiterate that one of the essential purposes rather two or three of the
essential purposes which made up the basis for these constitutional reforms was to ensure that
the fundamental principles of the Constitution are not altered. That whatever amendments are
made, are made within the ambit of fundamental principles of the Constitution. And when

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dealing with various institutions under the Constitution, their independence is not
undermined. And that their independence as ensured in the Constitution of 1973 is reassured"
(Parliamentary debates).

48. This reassurance indeed reflects the intention of Parliament and gives guidance to this
Court as to the aims of Parliament in bringing about reforms in the procedure for appointment
of Judges. It is precisely such reassurance which gives relevance to and enables us to draw
guidance from precedents, alluded to above, that expound the principle of the independence
of the Judiciary and its dependent relationship with the manner of judicial appointments. In
other words, insofar as "the fundamental principles of the Constitution are not altered," the
precedents that explain those principles are also relevant.

49. Once this is understood, our task of interpreting the newly added provisions of the
Constitution becomes relatively simple. We recognize at once that since the decisions of the
Committee have a direct bearing on the practical manifestation of our foundational
constitutional principles, this Court cannot possibly abdicate its jurisdiction and not examine
their meaning. At the same time, however, we remain cognizant that Parliament has, while
adhering to the fundamental principles of the Constitution, made changes which should be
given effect in furtherance of these principles. Looked at in this light, it is clear that the
essence of the amendments is to bring about changes in the process of making judicial
appointments, rather than in the structure and underlying values of the Constitution such as
the independence of the Judiciary and one of its supporting pillars namely, judicial
appointments.

50. In order to properly interpret the provisions of Article 175A and the principles upon which
this Article is based, it is also necessary to have a closer look at the historical circumstances
and the reasoning which informed the earlier precedents of this Court. This context will help
us appreciate the reasons why the two new institutions the Commission and the Committee
were created and what roles were envisaged for these constitutional bodies in the 18th and
19th Amendments.

51. Previously, there were a very small number of constitutional functionaries (judicial and
executive) who, through a process which was not very open, made decisions relevant to the
appointment of Judges of this Court and of the High Courts. Instances in our constitutional
history, therefore, tended either to create a tussle between the judicial consultees and the
executive functionaries of the State or, as happened in certain cases, the judicial consultees
felt over-whelmed, over-awed or ignored by the executive functionaries responsible for
making and notifying judicial appointments. Since this situation was not consistent with the
independence of the Judiciary, the matter was agitated, among others, in the Al-Jehad case. It
is through elaborate reasoning in the said case and examination of the fundamentals of our
constitutional scheme, that a division of functions between the judicial consultees and the
executive functionaries was delineated by this Court.

52. In brief, it was held that the judicial consultees are best suited to determine the caliber,
competence, legal acumen and over-all suitability of a person for appointment to a tenured
judicial office under the Constitution. The executive functionaries on the other hand were
considered more suitable, for ascertaining the antecedents of judicial appointees. A reasonably
clear demarcation between the different roles, respectively, of the judicial consultees and the
executive functionaries of the State was thus drawn. And with the passage of time this
demarcation was further refined. In the latest pre-amendment judicial pronouncement on the
question of appointment of Judges, made in the case of Sindh High Court Bar Association and

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another v. Federation of Pakistan and others (PLD 2009 SC 879), for instance, it was held that
the opinion of the Chief Justice of Pakistan in respect of the suitability of a person to be
appointed to constitutional judicial office had primacy and that this opinion was subjective
and not open to challenge through judicial review.

53. It is in the foregoing context that the creation of the Commission and the Committee must
be understood. It is quite possible that Parliament may have concluded that the Constitution as
interpreted in the foregoing precedents, had concentrated in one person viz. the Chief Justice
of Pakistan, enormous discretionary powers in the matter of making judicial appointments.
Such concentration, although tempered by consultation with the Chief Justice of the High
Court in which a particular appointment was to be made, could have been seen by Parliament
as having the potential of leading to error of judgment or, possibly, even abuse. These, or
similar concerns, can be of immense interest for the chosen representatives of the people.
Such concerns legitimately and eminently fall within the domain of Parliament which may,
therefore, decide to bring about a balance in the respective roles of the judicial and executive
functionaries responsible for making judicial appointments, subject always to the avowed
objective and the Constitutional imperative of having an independent Judiciary whose
independence is to be "fully secured".

54. Therefore, apparently guided by this object, in the new dispensation, instead of one
person, namely the Chief Justice, or at best two, namely the Chief Justice of Pakistan and the
Chief Justice of the concerned High Court, taking a decision on the competence and
suitability of a potential judicial appointee, the decision-making power has been diffused and
spread over a collegium comprised of thirteen persons. A similar diffusion appears to have
been intended for the executive role in judicial appointments by constituting the
Parliamentary Committee. This, however, will be examined shortly.

55. In this light, if we consider further the composition of the Commission, it will lead us
closer to understanding the role envisaged for it. It is clear that each member of the
Commission is directly and substantially connected with the Courts in one way or another.
The members of the Commission thus have the occasion of assessing first hand, the legal
abilities and performance of persons who potentially could be appointed as Judges. In the ex
Officio appointments of the Minister of Law and Parliamentary Affairs and of the Attorney
General for Pakistan, the-Judicial Commission now also has the additional ability to make an
assessment as to the antecedents of a nominee through access to the information and
executive resources of the State which otherwise, may not be available te5 the other members
of the Judicial Commission. What is also worth noting is that barring the one former Judge of
this Court and the advocates who are members of the Commission, all others are ex Officio
Constitutional functionaries making the Commission a continuous body with changing
membership, the preponderant majority whereof, being ex Officio, is not dependent on any
separate process for their own appointment.

56. This composition of the Commission immediately highlights two things. Firstly, that the
expertise and core competence of the members of the Commission will facilitate the
identification and nomination of appointees to judicial office based on caliber, competence,
legal acumen, antecedents and over-all suitability of a person for appointment as a Judge.
Secondly, the composition of the Commission will ensure diverse inputs on account of the
diversity and the continuous changing nature of its membership, thus tending to make the
Commission's nominations more objective and not dependent on the personal opinion of one
or, at best, two individuals. It does not take a great deal of imagination or a leap of logic to

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conclude that the role (as defined by precedent) which was assigned previously to the judicial
consultees is now to be performed by the Commission as a collegiate body.

57. We can now come to the erstwhile role of the other functionaries involved in the
appointment process. It will be seen that in the original Articles 177 and 193, a Judge of the
Supreme Court and Judges of a High Courts were to be appointed by the President after
consultation with the Chief Justice of Pakistan and other consultees mentioned in Article 177
and Article 193 (1) respectively. These provisions, in relevant part, have been replaced by
Articles 177 (1) and 193 (1), as amended, which stipulate, inter alia, that Judges of the
Supreme Court and the High Courts shall now be appointed by the President in accordance
with Article 175A. When clause (1) of Article 175A is considered, a bare reading of the same
shows that the Commission has been created for the appointment of Judges of the
Constitutional Courts. Thus, while the President previously made the appointments on the
advice of the Prime Minister, both have now been left with nominal ministerial roles and their
powers, in the words of Mr. Raza Rabbani, "have been taken away". The Prime Minister is
now obliged to simply forward the confirmation made or deemed to have been made by the
Committee to the President and the President equally is obliged to make the appointment on
the basis of such confirmation. The Prime Minister and President, under the new
constitutional dispensation, thus have no power or authority to differ with the decision of the
Parliamentary Committee. The role which they were performing in the previous legal setup,
as examined above, is now, logically, to be performed by the Committee. It is, therefore,
evident that the purpose the raison d'etre of the Commission and the Committee is the
appointment of Judges albeit in accordance with the procedure laid down in Article 175A.

58. Given this dispensation and the above referred historical context, the Committee cannot
(without eroding judicial, independence) be seen as a superior body sitting in appeal over the
recommendations of the Commission with the ability to set aside or reverse the well
considered opinion of the members of the Commission. The fact that Parliament was fully
aware of the state of the law, as judicially interpreted, and yet did not define or demarcate the
respective roles inter se of the Commission and the Committee, provides very strong
manifestation of the intention of Parliament "that the fundamental principles of the
Constitution are not altered". The distinction between the legal acumen and suitability of an
appointee, and his antecedents is so well recognized in our constitutional jurisprudence that it
is not possible to assume that it was not in the mind of Parliament when it decided to amend
the Constitution. From the absence of role-definition in Article 175A, in respect of the
Commission and Committee, it can safely be inferred that Parliament intended to preserve the
delineation of powers in the previous dispensation, but vest the roles in more diffused bodies
than was previously the case.

59. In view of the foregoing discussion, we may conclude that it is the constitutional mandate
of this Court to exercise judicial review over the decisions of the Committee, which, after all,
are executive decisions that have great bearing on the independence of the judiciary and the
separation of powers between the different State organs.

60. Before moving on to the next section of this opinion, we may also address a number of
arguments made on the issue of justiciability by the learned Additional Attorney General. He
argued, firstly, that the question of justiciability of the decisions of the Committee had yet to
be decided by the seventeen-member larger Bench: of the Court in the petitions filed to
challenge the wires of the 18th Amendment. On this basis, he submitted that this Bench
should await the decision of the larger Bench and, in the meanwhile, put the adjudication of
these petitions on hold. The learned Additional Attorney General was of the view that the

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present petitions were a back-door attempt to challenge the role of the Committee and to
undermine such role even before the full Court has had the opportunity of deciding the
petitions challenging the 18th Amendment. We have considered these submissions and
reiterate that the scope of these petitions is materially different from the scope of the petitions
being heard by the larger Bench. We are clear, as stated earlier, that the present petitions
assume the validity of the 18th and 19th amendments. The petitioners only seek judicial
interpretation of these amendments for the purpose of their challenge to the two
aforementioned decisions taken by the Committee. Put simply, while the present petitions
seek judicial review of decisions of an executive body, purported to be taken under Article
175A of the Constitution, the petitions before the larger Bench challenge the very authority of
Parliament to make the amendments challenged in such petitions. It is, therefore, evident that
any adjudication in these petitions will relate only to the impugned decisions of the
Committee and not to the validity of the amendments in the Constitution.

61. Mr. K. K. Agha, the learned Additional Advocate General then argued that public airing
of, and debate on, the reasons given by the Committee for rejecting a nomination would
undermine the sanctity of the judicial office. Also, if the decisions of the Committee were set
aside and the Judges concerned were called upon to perform their judicial functions, they
would be confronted with an unsavory working environment; always haunted by the cloud of
allegations which found favour with the Committee. According to the learned Additional
Attorney General, public examination of such reasons would further create friction between
the Chief Justice of the High Court and the Judges concerned, which would not be conducive
to the effective and independent administration of justice. Moreso, such an environment
would generate, amongst the litigating public, a Mack of confidence in the fairness and
competence of the concerned Judges. These submissions raise issues of propriety rather than
legality and appear to have been made in support of the plea that the Court should exercise
restraint and decline to exercise jurisdiction, even if it decides it has the power to review the
decisions of the Committee.

62. There may be some justification for the foregoing submissions. We are, however,
cognizant, as was the learned Additional Attorney General himself, that during the period of
transition from the previous to the present system of judicial appointments, some issues will
surely arise. We are confident, though, that very soon conventions and precedents will
develop which will evolve into a modus vivendi et operandi and will smoothen the working of
the Commission and the Committee in the roles envisaged for the two bodies under Article
175A of the Constitution. For now, these concerns expressed by Mr. Agha, even if not
exaggerated, are more than counter-balanced by the ideal, espoused by the Constitution, of an
independent judiciary whose independence is to be fully secured.

63. Lastly, we would like to address the submission made on behalf of the Federation that
Parliament represented the will of the people and such will had to be respected. It goes
without saying that this Court, as a matter of Constitutional propriety makes every effort to
defer to the legislative and constitutionally mandated actions of Parliament and endeavors to
save and uphold such actions. This principal of deference is generally adhered to in
recognition of the democratic ethos of our Constitution and to acknowledge that Parliament as
a whole is comprised of "the chosen representatives of the people". Notwithstanding this legal
principle, Courts undeniably have and do exercise the power of judicial review to strike down
legislation and other Parliamentary action, wherever required in terms of the Constitution.
Therefore, as noted earlier, these petitions should not be seen as a challenge to Parliament's
authority or to it's representative status. Our task is much simpler. We are engaged merely in
ascertaining the intent of the Constitution and enforcing it, under the well established rules

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and conventions of judicial review. We may add that deference to Parliament does not extend
to bodies having a separate status even where such bodies are comprised of persons who may
be members of Parliament. To illustrate this point, reference may be made to Article 91 of the
Constitution. It provides inter alia, that "[t]here shall be a Cabinet of Ministers, with the Prime
Minister as its head, to aid and advise the President in the exercise of his functions". In our
parliamentary system of government, the Prime Minister and other ministers in the Cabinet
are all members of Parliament, yet the Cabinet cannot be equated with Parliament or be
accorded the same status as Parliament. The Committee likewise, though , comprised" of
members of Parliament, is not to be equated with Parliament or, as earlier discussed, even
with a parliamentary committee elected by Parliament under the Senate Rules or the
Assembly Rules.

GROUNDS OF REVIEW AND CONCLUSIONS

64. Having determined that the decisions of the Committee are justiciable and subject to this
Court's power of judicial review, we need to determine the rules which should define the
exercise of such power and the sources from which these rules are to be derived. The
foremost source must be the Constitution itself which has created this Court as well as the two
constitutional bodies viz. the Commission and the Committee. The basis of judicial review in
these cases thus must be firmly anchored in the Constitution. Article 5(2) of the Constitution
declares that "obedience to the Constitution and, law is the inviolable obligation of every
citizen ..." This means that the Committee too is obliged, to ensure that its decisions are in
accordance with the law and the Constitution. Whether this obligation has been duly
discharged would be a matter reviewable by this Court. The touchstone for such review is
conformity with the Constitution and the law. This is in line with Article 184(3) read together
with Article 199(l)(a)(ii), which confer upon this Court the authority to make, in appropriate
cases, an order declaring that "any act done ... in connection with the affairs of the Federation
... has been done without lawful authority" and is, therefore, "of no legal effect.'' It follows
that what the Court needs to determine presently is whether the impugned decisions of the
Committee conform with the requirements of the Constitution and the law, and whether such
decisions have been taken while remaining within lawful authority. The grounds upon which
this Court can adjudge this issue flow directly from these constitutional provisions
themselves; they have also been elaborated upon in a number of precedents.

65. A classical analysis of the grounds on which administrative decisions are subjected to
judicial review was presented in an English case, Council of Civil Service Union v. Minister,
by Lord Diplock. This analysis has also been frequently adverted to in our jurisprudence on
the judicial review of executive action. A recent instance can be found in the opinion of Ch.
Ijaz Ahmad; J. in the case of the Chief Justice of Pakistan, supra at pages 232 to 238. The
analysis in the case of the Civil Service Union supra is equally applicable to the
circumstances of these petitions. Lord Diplock stated three grounds for exercise of the Court's
power of judicial review. These are `illegality', `irrationality' and `procedural impropriety.'
Council of Civil Service Union v. Minister ([1984] 3 All ER 935, 950-952) What is important
for deciding the present petitions is the scope and nature of `illegality', which, in the language
of the aforesaid case, is measured on the consideration" ... that the decision-maker must
understand correctly the law that regulates his decision-making power and must give effect to
it. Whether he has or not is par-excellence a justiciable question to be decided, in the event of
p dispute, by those persons the Judges by whom judicial power of the State is exercisable"
(ibid). Thus any decision based on an incorrect understanding of the law that regulates the
decision-maker's decision-making power, would be an illegal decision, and it could be
corrected through judicial review. What must be emphasized here is that in disputed cases, it

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is for the Courts to definitively interpret the law and thereafter to test the administrative
decision on the touchstone of the law so interpreted.

66. In the present case, the Committee has taken a decision in accordance with its own
understanding of Article 175A. We need to point out what the understanding adopted was, and
then determine whether it was the correct one. To answer this question, we now take a
detailed look at the facts of the Committee's decision, and the run up to it.

67. It is apparent from the record that on 22-1-2011, when the Commission assembled for the
purpose of making nominations/appointments to the Lahore High Court, all thirteen of its
members were present-. They had a meeting where all factors relevant for such appointments
were reviewed. This is evident from the letter which the Secretary of the Commission sent to
the Secretary of the Committee, dated 22-1-2011. In relation to nominations to the Lahore
High Court, it said "the Commission had in depth discussions about [the] professional caliber,
legal acumen, judicial skills, quality/quantum of judgments, commitment/devotion to duty,
efforts made for expeditious disposal of cases, number of reserved/pending judgments and
also examined [the] antecedents of 24 Judges nominated by Judicial Commission for
appointment as Judges of the Lahore High Court". It is not necessary to reproduce the names
of all 24 Judges nominated for appointment by the Commission. It will suffice for the present
to note that the Commission performed its functions of nomination and appointment of the
aforesaid Judges, in accordance with the provisions set out in clauses (1) to (8) of Article
175A of the Constitution. A similar exercise was undertaken by the Commission in respect of
the nominations made for the Sindh High Court as is clear from the letter of the Secretary of
the Commission dated 19-2-2011 written to the Secretary of the Committee, which letter is
along the lines of the letter dated 22-1-2011, referred to above.

68. The Committee, after receiving the nominations including the recommendations for
renewal of tenure of the above mentioned six Judges, took the decision not to confirm their
nominations. It is important to note that the Committee chose to disregard the unanimous
nominations made by the Judicial Commission. For this, it appears to have relied only on the
contents of brief pro formas which had been filled in by the Chief Justices of the Lahore and
Sindh High Courts respectively. For reasons which are examined below, it is in our opinion,
of the greatest relevance to consider the significance of such pro formas. These pro formas
appear to have been designed by the Commission for the purpose of obtaining particulars and
general information about the persons being considered for appointment as Judges. The
material column in the pro forma, for the purpose of the present petitions, relates to the
evaluation made by the Chief Justice of the concerned High Court in respect of a potential
nominee, based on criteria such as integrity, knowledge of laws, performance etc. The pro
forma also contains the opinion of the Chief Justice of the concerned High Court as to
whether or not a person being considered should be recommended to judicial office. In the
case of the four Hon'ble Additional Judges of the Lahore High Court, the recommendation
made in the pro forma was that their tenure be renewed for a period of one year. However, in
respect of the two Hon'ble Additional Judges of the Sindh High Court, the opinion stated by
the Hon'ble Chief Justice was that their tenure should not be extended. Nevertheless, after
deliberation by the Judicial Commission as a collegiate constitutional body, even the Hon'ble
Chief Justice of the Sindh High Court agreed that the two Hon'ble Additional Judges of his
Court should be recommended for renewal of their respective tenures for a further period of
one year. The Committee chose, nonetheless, to turn these nominations down, relying solely
on the earlier views expressed by the Chief Justices of the High Courts.

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69. From this review of the facts, it seems clear that the Committee took Article 175A to mean
that it is a constitutional body sitting in appeal over the decisions of the Commission. This, as
we have shown earlier, is far from being the case. Such an interpretation is borne out neither
by the text of Article 175A nor by its context. Earlier in this opinion we have reviewed the
foundational principles of our Constitution, namely independence of the judiciary and
separation of powers, in the light of which Article 175A must be interpreted. We have also
reviewed the historical evolution of this Article and the legislative intent behind it, which
demonstrates that while power has been devolved from persons to collegial institutions, the
essential demarcation of duties between judicial consultees and executive functionaries,
chalked out by precedent; has remained largely intact. All constitutional provisions have to be
interpreted accordingly. Justice Fazal Karim, a former .Judge of this Court can today be
counted amongst the foremost scholars and academics on constitutional law. In his seminal
book "Judicial Review of Public Actions", he has examined a number of precedents from our
jurisdiction to support his comment that "the independence of Judiciary is now not merely one
of the general principles of the Constitution of Pakistan; it is part of its substantive provisions
and the relevant constitutional provisions must be construed accordingly to ensure the
independence of the Judiciary. The provisions of Part-VII of the Constitution must be taken as
giving efect to ... that general principle" (Karim, Fazal "Judicial Review of Public Actions"
Vol. 1, p.110). Our review of these factors, which collectively provide the context in which to
read Article 175A, allows us to conclusively arrive at a more organic interpretation of the said
Article. And, this interpretation does not support the expansive manner in which the
Committee has construed its own power, nor does it support the dismissive- way in which the
Judicial Commission's unanimous recommendations have been treated. The Committee's
decision,' based on an incorrect understanding of the constitutional provision regulating its
decision-making powers, travelled much beyond its lawful authority. On this ground alone, it
may be held that the decisions of the Committee impugned before us, were taken without
lawful authority and are thus unconstitutional.

70. It should be clear from the earlier discussion and established precedent that, to ensure the
independence of the Judiciary, it is important that the process of making judicial appointments
remains independent of the executive and the legislature, except for such executive inputs in
decision-making which can ensure and advance the independence of the Judiciary. In the case
at hand, the Committee has not provided any such input.

71. It also needs to be reiterated that the thirteen members of the Commission are law-
knowing and law related persons who can make an objective evaluation of the suitability of a
nominee for judicial office. From members of the Committee, it is not expected that they will
have first hand information about a nominee or that they will have the same level of expertise
as the Commission, to evaluate the suitability of a nominee for appointment to high judicial
office. The Committee, however, is not a meaningless or redundant body. It has the ability to
add value to the process of making judicial appointments by taking into account information
which is different from and may not have been available with the Commission.

72. Even the learned Additional Attorney General contended that the two bodies namely, the
Commission and the Committee were coordinate bodies, neither of which was subordinate to
the other. If, however, it is conceded either that the decisions of the Committee are not
justiciable or that it has the power to review and reverse the findings of the Commission, an
anomalous and even absurd situation can result. It would not be possible or justifiable
(without adversely effecting the independence of the Judiciary) to interpret Article 175A in a
manner which grants a virtual veto to the Committee enabling it to reverse the
recommendations of the Commission, for considerations which have already received the

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attention of the Commission in its deliberations. This is so because of the composition earlier
discussed, of the two bodies. It cannot be seen as the intention of the Constitution as
amended, that the thirteen members of the Commission who amongst them include the five
senior-most members of the Judiciary in the country together with a former Judge of this
Court and the Chief Justice of the High Court concerned, should be trumped in their views
about the competence and suitability of a nominee, by six members of Parliament who, it may
be stated with great respect, are not supposed to be equipped with the core ability for
evaluating, inter alia, legal acumen and competence.

73. The two constitutional bodies also cannot be seen as adversaries serving antagonistic and
conflicting ends. We are in agreement with the learned Additional Attorney General and
learned counsel for the petitioners that the object of both bodies is to ensure the selection and
appointment of the most suitable persons as Judges of the High Court, which, in turn, is
essential to secure fully the independence of the Judiciary.

74. With the above considerations in mind we also need to avoid giving overly broad or
sweeping statements on Article 175A as amended by the 19th amendment. We are not here
engaged in an academic exercise or in a discourse to expound general constitutional principles
of political philosophy. Our job here is to determine the fate of the petitions before us. And
the outcome of these petitions is determined, ultimately, by their own facts and circumstances.

75. There is another way in which the Parliamentary Committee's decision can be shown to be
based on an erroneous understanding of the law and also violative of the spirit of the
Constitution, as amended. One of the fundamental aspects of the 18th and 19th constitutional
amendments, and the changes intended to be brought about thereby, was to do away with the
subjective opinions of one or two persons. This object was to be achieved through the creation
of a thirteen-member collegium which could, through consideration of varying opinions,
make a collective decision by majority of its membership. In the present case, the collegium
which is the Commission has, after deliberation, made nominations which are unanimous and
include also the concurrence therein of the respective Chief Justices of the Lahore and. Sindh
High Courts.

76. In the foregoing circumstances, it would negate the very purpose of the 18th and 19th
amendments, if the Committee were to have the power to rely upon the opinion of just one
member of the Commission, and that too, expressed prior to collective deliberations, to
nullify the ultimate collective views of the Commission. The purpose of diffusing the
decision-making process and spreading it over a collegium comprising of thirteen persons
was to ensure that an objective and balanced opinion emerges from the deliberations of the
Commission. This process was meant to ensure, to a great degree, objectivity in the
nominations made after discussion and inputs from all members of the Commission.

77. The learned Additional Attorney General wished to emphasize the fact that the Chief
Justice of the High Court was most suitable and was eminently qualified to make an
evaluation as to competence etc. of a nominee. He seemed to suggest that since the
Parliamentary Committee had relied on the views expressed by the Chief Justices of the
respective High Courts to which the concerned judges were nominated, this lent weight to the
Committee's decision. This is an argument which is flawed on three counts.

78. Firstly, it is relevant to note that the pro forma filled in by the Chief Justices of the two
High Courts was at best a mechanism for tabling the particulars of a nominee which would
enable the Commission (acting collectively) to have a meaningful and purposive discussion

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leading to an informed decision about recommending such nominee. As stated above, it is not
necessary in the facts of the present petitions to embark on a scrutiny of the evaluations of the
Hon'ble Chief Justices, made in respect of the six Hon'ble Judges whose nominations are in
question, because after considering each nomination, the Commission (including the Chief
Justices of the two High Courts), has unanimously made its recommendation that their tenures
be renewed. The pre-deliberation evaluations of the Chief Justices of the Sindh High Court
and the Lahore High Court do not now need to be considered because, as a matter of law,
such evaluations disappeared when they merged into the final recommendation of the
Commission made by a majority of its members and which, in the present case, has been
made unanimously.

79. Secondly, this argument does not take into account the express wording of Article 175A
which mandates a collective decision of the Judicial Commission and leaves no room for
individual opinions of any one member of the Judicial Commission. It should be clear by now
that the Constitution, in its amended form, recognizes only the collective decision of the
Commission. The Constitution does not accord any primacy or special weightage to the
opinion of any one member of the Judicial Commission. This is particularly so when such
opinion is a purely individual opinion without benefit of the views of other members of the
Judicial Commission. If anything the amendments in the Constitution appear consciously and
deliberately to have eliminated reliance on the views of a single person. Weightage, if any,
which may attach to the opinions of the individual members of the Judicial Commission, is a
matter for consideration by the Judicial Commission alone because the Constitution as
amended, does not recognize individual opinions as to the competence, antecedents or over-
all suitability of a nominee.

80. Thirdly, the argument does not take into account the larger ramifications of such a ruling
for the future of our constitutional system. If it is held today that the Parliamentary
Committee may give primacy to the opinion expressed by the High Court Chief Justice sitting
in the Commission, tomorrow, there would be little justification left for objecting, if the
Parliamentary Committee relied on the individual and varying opinions of any one of the
thirteen members of the Judicial Commission. So, if things were left to proceed in that
direction, even a 12-1 majority decision of the Judicial Commission could easily be negated
by the Parliamentary Committee, relying on the one note of dissent that they find therein. This
would effectively grant the Parliamentary Committee a veto in the appointment of judges a
situation contemplated neither by the Constitution nor palatable to any of the organs of the
State, including the Parliament itself.

81. In the end, to facilitate understanding, we may recapitulate the key arguments, elaborated
in this opinion, which bring us to reaffirm the short order pronounced earlier. First, we have
held that these petitions are maintainable under Article 184(3) since they do involve issues of
public importance and are related to the enforcement of fundamental rights. Next, we have
laid out the principles which guide us in our task of constitutional interpretation. After this, by
applying these principles while interpreting Article 175A, and by viewing it in the context of
its historical genesis and the foundational principles of our Constitution, we arrive at a correct
and organic interpretation of the said Article. This has allowed us to determine that the
decisions of the Parliamentary Committee are subject to judicial review in this Court; and it
has also helped us better appreciate the relative roles assigned by the Constitution, as
amended, to the various institutions and functionaries involved in the process of appointment
of judges. Finally, the facts of the present petitions have been scrutinized using the well-
understood principles of judicial review. This scrutiny reveals that the impugned decisions of

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the Committee are based on an erroneous understanding of t the law and the Constitution;
since these decisions were taken without lawful authority, they are of no legal effect.

82. While concluding this opinion, I may add that there is nothing unusual or exceptional
about differences as to constitutional questions cropping up between constitutional bodies or
State functionaies in a democratic dispensation. Such differences may arise particularly when
new provisions are incorporated in the Constitution. However, as nations mature and polities
evolve, their, maturity is reflected in the manner in which such differences are resolved in
accordance with the governing compact, which is the Constitution. The differences of opinion
between the Commission and the Committee, in this context, cannot be' seen as adversarial
turf-wars between the two bodies, or as matters of prestige. Both bodies, as noted earlier, have
the common aim of ensuring that "... the will of the People of Pakistan to establish an order ...
[w]herein the independence of the judiciary is fully secured," which is an objective set out in
the Constitution itself, is accepted as a command of the People and is implemented, both in
letter and in spirit with due humility and sincerity.

83. Lastly, I would like to refer to Articles 28 and 251 of the Constitution. These provisions
highlight the Constitutional imperative of promoting languages other than English. In order to
fulfil this need, I have made a humble attempt (as Annexed, that a gist of this opinion is
(without need for intermediaries) made accessible to a wider section of those who are unable
to understand the language of this opinion.

Sd/-
Jawwad S. Khawaja, J

(Limitation of Amendment Procedures and the Constituent Power, The India Yearbook
of International Affairs, 1967, p. 375)

(Tribe, Lawrence H., Dorf, Micheal C., "Chapter 1: How not to read the Constitution"
or On reading the Constitution, Harvard University Press, Cambridge, 1991)

M.A.K./M-
14/S??????????????????????????????????????????????????????????????????????????????????
Order accordingly.???????????????????

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;

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