Pakistan

Committee vs Commission: Parliamentary committee’s role undiminished, says SC

Apex court issues detailed verdict on parliamentary panel on judges’ appointment.

Express May 07, 2011

ISLAMABAD:

The Supreme Court on Friday released the detailed judgment on the government’s review petition over the appointment of additional judges of high court and noted that its earlier decision had not minimised the role of parliamentary committee under Article 175A of the Constitution.

The detailed judgment is authored by Justice Jawwad S Khawaja, a member of the four-member bench that had heard the judges’ appointment case.

On April 20, a four-member bench of Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S Khawaja, Justice Khilji Arif Hussain and Justice Tariq Parvez had heard the civil review petition of federation on its earlier decision regarding non-acceptance of the recommendations of the judicial commission by parliamentary committee with respect to additional judges of Lahore and Sindh high courts.

Citing reasons, Justice Khawaja writes: “Though the Judicial Commission and the Parliamentary Committee perform essentially the same functions as the chief justice and the prime minister in the previous dispensation, it will be a mistake to imagine these constitutional bodies as simply substitutes for Chief Justice of Pakistan and Prime Minister, respectively”.

“The base of decision-making has been substantially broadened. Thus, we now have in the commission, members of the bar and the governing executive involved in the decision-making process along with seven members of judiciary who did not have a constitutional role in the previous dispensation,” says the verdict.

It says that this should not be taken to mean that the Committee’s role in considering the antecedents of such nominee stands eliminated, adding that the committee may also examine the antecedents of a nominee and form an opinion as to his suitability for judicial office. Such opinion, however, must conform to standards which pass judicial scrutiny because the decisions of the Committee are subject to judicial review, it adds.

The verdict says that there might, therefore, be an overlap of functions of the commission (judicial commission) and the (parliamentary) committee, for instance, (in) assessing and evaluating the antecedents of a nominee for judicial office.

It says this overlap does not eliminate the role of the committee or make it redundant. It simply requires the Committee to engage in a conscious and rigorous exercise of its own which will ensure that a person who has dubious antecedents is filtered out in the selection and appointment process, says the verdict.

“However, if the committee, as in the present case, does not engage in any exercise at all other than picking up an observation of one member of the Commission and chooses to base its decision on it without more, it will have fallen in error,” it adds.

The verdict says that the committee had to perform its role in a meaningful way and with the application of mind which would withstand judicial scrutiny in accordance with recognised standards.

According to the verdict the committee has and can exercise the powers which under the earlier dispensation were exercisable by the prime minister. “We have specifically held that the role which they [the Prime Minister and President] were performing in the previous legal set-up is now logically to be performed by the Committee”, it says.

“Therefore, if the prime minister’s role in the previous appointment mechanism was not considered to be meaningless, we fail to see how the Committee, charged with performing the same role, can be considered redundant,” it added.

The verdict said that this can be further buttressed if one considers the speeches of Raza Rabbani, chairman of the parliamentary committee on constitutional reforms (PCCR), on floor of parliament at the time the 18th Amendment bill was being debated. On April, 6, 2010 for instance with the object of convincing the members of the National Assembly to approve Article 175A.

The verdict says that the judgment under review we have given reasons for our view that the committee’s name is irrelevant; it is independent of parliament and cannot be considered its part or be accorded the same status as parliament.

Published in The Express Tribune, May 7^th, 2011.

COMMENTS (5)

Jehangir Masud | 12 years ago | Reply Referring to the views of the respective CJs of the High Courts is not "applying one's mind". The views of the respective and respected High Court CJ's had been considered by the Judicial Appointments Commission and not considered to be an impediment to the appointments. The Parliamentary Committee, if it was serious, should have undertaken research and provided substantive reasons, rather than just opinions of individuals however distinguished, to justify blocking the appointments in question. This is what the 19th amendment requires. As for the UK parliament, since the incorporation of the European Convention on Human Rights into domestic British law, the Courts can declare any act of parliament as being in conflict with the provisions of the Convention. The government then has an obligation to re-present the bill to parliament and, in practical terms especially with an independently minded upper chamber, would have to amend the legislation in light of the court's judgement to have any hope of getting it through. The UK courts also regularly declare government actions, even in matters of national security, to be illegal and, however unhappy UK governments have been with the court's decisions, they have respected them instead of abusing the judges. Once again, if governments do not wish the courts to review their actions they should keep those actions within constitutional limits.

Judi | 12 years ago | Reply Sorry to Say Mr. Masud, the Parliamentary Committee considered the views of the respective CJ of the High Courts which CJ SC ignored. High Courts CJ were honest as they were immediate persons to assess. Regarding UK, the Parliament is sovereign and no court in UK can rescind or even review the acts of Parliament. This practice is standard in democratic and civilized countries, where Judiciary never encroach the domain of the Parliament and Executive . Our judiciary need to strengthen the Constitutional democracy and especially it is important in a Federal setup.

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Jehangir Masud | 12 years ago | Reply I am sorry that both Shahzad Khan and Judi have missed the point of the judgement, which should be appreciated by all as another landmark in our tortured constitutional history. The crucial point the judgement makes is that the committee must apply its mind to the task in hand. The whole point of parliamentary sovereignty is not that parliament (or the executive for that matter) act whimsically like sovereigns but that they act according to the constitution and the law and in a manner that can withstand public and judicial scrutiny. This is especially so in the matter of judicial appointments where parliament itself made the recommendations of the parliamentary committee subject to judicial review. If parliament and the executive do not want their decisions overturned by the courts let them exercise their minds rather than their whims when they make decisions. By the way, even in the United Kingdom, where parliament, in the absence of a written constitution, is truly supreme, all legislation and all executive decisions are subject to judicial review.

Judi | 12 years ago | Reply This verdict show the Judges want nothing but the "Judicial Feudalism (Chaudrahat)" and Judicial Kingships" where Judges being the public servants want to select the Judges of their own choice. Such a scheme is devoid of legitimacy and constitutional authority. It is prerogative of the Parliament and executive to appoint public servants be that Judiciary, civil or Army posts. Because if the parliament and Executive make mistakes, people can change their leaders but no such scheme exists in case of Judiciary in Pakistan. Judges role is strictly to interpret the constitution and not to write the constitution. Judges can't exercise supra-constitutional authority to select fellow-judges. Under feudal structure, Chauderies (aka Judges here in this case) nominate their Heir-select to succeed. This judiciary was restored by the people and the parliament being the manifestation of people's sovereignty represents the supreme will of people. Judiciary should respect and honor the sovereignty of Parliament- let the parliament exercise their constitutional and legal powers and Judiciary should not encroach the parliament's sovereignty. Many technocratic and unrepresentative state institutions despise the Parliament and they think are the experts and parliament is bunch of illiterate and corrupt people. Here Judges boasts that they can make always perfect decisions and choices- history shows the otherwise. Judiciary as an institution has committed many historical blunders. Judges have very cleverly made the 18th and 19th amendment ineffective and they don't want to relegate their Chuadrahat. Parliamentary Committee should be sovereign and Judges should respect people's verdict as exercised by the Parliament and its created committees.

Shahzad Khan | 12 years ago | Reply Let's see when the Parlimentary committee sends this verdict to both houses of Parliament(National Assembly & Senate) for detailed discussion and declaring it null & void through simple majority vote.

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