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 7th, 2011.
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