Verdict on judges appointment case does not minimize Parliamentary Committee's role: SC

The verdict is authored by Justice Jawwad S. Khawja, a member of the four-member bench, which had heard the judges appointment case and gave an earlier ruling.

Citing reasons, Justice Khawaja wrote, "Though the Commission and the 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 the Chief Justice of Pakistan and the 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 the Judiciary who did not have a constitutional role in the previous dispensation," he added.

He said that this should not be taken to mean that the Committee's role in considering the antecedents of such nominee stands eliminated.

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, he added.

He said that there might, therefore, be an overlap of functions of the Commission and the Committee in, for instance, assessing and evaluating the antecedents of a nominee for judicial office.

Justice Jawwad says "But 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."

"However, if the Committee, as in the present cases, 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," he added.

He further wrote 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 recognized standards.

About another argument raised by Additional Attorney General for Pakistan KK Agha, he said,"The Federation, nevertheless, wants us to hold that this verdict of the Committee is sacrosanct despite these shortcomings.

"To give such extraordinary precedence to the verdict of the Committee, based on nothing more than tentative observations (subsequently reconsidered) of one member of the Commission is not warranted.

"The appointment of judges is too serious a matter to be dealt with in such casual fashion. The requirement of Article 175A is that the Committee shall give "its decision with reasons" in the event it does not confirm a nomination made by the Commission," he said, adding that unfortunately, this had not been done.

"Instead the Committee's decision making function, entrusted to it by Article 175A, has in effect, been outsourced.

"Let me say at once that the Committee has and can exercise the powers which under the earlier dispensation were exercisable by the Prime Minister. We have specifically held that "[t]he 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.

"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," he added.

Justice Khawaja said," this can be further buttressed if one considers the speeches of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th Amendment bill was being debated. On 6.4.2010, for instance, with the object of convincing the members of the National Assembly to approve Article 175A.

He said, "We can take comfort in the fact that our

interpretation of Article 175A matches the intention of Parliament as we have held in the judgment under review that, 'Parliament intended to preserve the delineation of powers in the previous dispensation, but vest the role in more diffused bodies than was previously the case. If we have enunciated this general principle of law, it is difficult to see how it can be said we have rendered the Committee redundant."

To another argument of Additional Attorney General KK Agha, regarding a bar on judicial review, the Justice said that this was an unfounded concern.

"The challenge to the Court's power of judicial review in the petitions being heard by the seventeen-member Bench is based on the premise that a constitutional amendment properly passed by Parliament under Article 239 of the Constitution cannot be judicially reviewed.

"Needless to say this aspect of the petitions before the said Bench will be addressed in the petitions being heard by it. The present cases, we repeat, assume the validity of the 18th and 19th amendments. Judicial review in these cases relates to decisions which have been made by the Parliamentary Committee purporting to be decisions under Article 175A of the Constitution," he added.

He said that the distinction between judicial review of a constitutional amendment and judicial review of an act purported to have been done under the Constitution should provide reassurance to KK Agha that by acknowledging the Court's power of judicial review in these cases, he was not being inconsistent with his argument before the seventeen-member Bench.

To another argument, he said that they could take up the submissions of Agha in relation to their finding that the Committee cannot be equated with Parliament nor can it be treated as a sub-set of Parliament in the manner in which a Parliamentary Committee elected and answerable to Parliament can be considered to be part of Parliament.

"There is ambivalence in the thinking of the Federation. This seems to be a result of the appellation of `Parliamentary Committee' used in Article 175A and discussed in the judgment under review," he added.

Justice Jawwad further said,"The mistaken notion apparently has resulted from ignoring the wisdom of the Master al-Ghazzali of old and the contemporary thinker S. Idries Shah that the container or outward label is not and must not be confused with the content if we are to avoid the pitfalls of superficiality and muddled thinking. The Bard revered by the English spoke in similar vein a few hundred years after al-Ghazzali. With a slight twist to his words we can say, that the gainda, a beautiful flower in itself, will not become a rose or acquire its attributes and smell as sweet, if called a rose."

He said," in 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.

He said that the argument originally framed in the 18th Amendment, created a misleading impression that the Committee was an independent body, the changes brought about in Article 175A by the 19th amendment, had the effect of clarifying that the Committee was meant to be part of Parliament.

"This submission is disingenuous and is also in conflict with the Federation's own stance," he adds.

To another argument about prejudice caused to 18th Amendment case, Justice Khawaja wrote," this argument is based on the premise that certain issues, which were argued before the larger bench in the said case, had yet to be finally determined; therefore, instead of deciding those issues in the instant case, this bench should have either clubbed these proceedings for adjudication with the 18th amendment cases or waited for the final decision in that case.

"We have considered this argument and find it to be without force. Firstly, the justiciability of the decisions of the Committee was not a central issue in the 18th amendment cases; any submission thus made by the Federation regarding the justiciability of the Committee's decisions was only ancillary to the argument which concerned this Court's power to judicially review a constitutional amendment," he adds.

He wrote, "We, therefore, do not see any prejudice being caused to the Federation as a result of our adjudication. As to prejudice to the other parties, none of them has approached us with any grievance that they have been prejudiced by our judgment."

About issue of maintainability of the case as pointed out by KK Agha, who submitted that the failure of the Court to consider Article 10A and the consequent denial of the implied right of at least one appeal and the implications of this omission have not been examined in the judgment under review, the Justice wrote that this was a new argument which was never raised during arguments in the constitutional petitions.

"In principle, this is reason enough to dismiss this argument, since it has long been settled that new issues are not to be entertained at the review stage," he added.

He said," however, even if we were to consider this argument, it would have made no difference to the outcome of the review since it is misconceived because it ignores the express provisions of Article 184 (3) of the Constitution.

"In view of the foregoing discussion, we find no justification for reviewing our judgment. These review petitions are, therefore, dismissed," Justice Khwaja concluded.

A four-member bench of the Supreme Court comprising  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 the Parliamentary Committee with respect to the judges of Lahore High Court and Sindh High Court on April 20.