In its 86-page detailed verdict authored by Justice Mahmood Akhtar Shahid Siddiqui, the apex court says that apprehensions raised by the petitioners were right as reasoning adopted by committee for rejection of the judges' names was irrelevant, unjustified and improper under the law and therefore, it was without legal force or constitutional sanctity.
Justice Siddiqui said that the entire reasoning of the committee was focused to only that material which had already been thrashed out and discussed in depth by the judicial commission instead of forwarding its own reasons for not confirming the nominations.
"But not doing so the committee merely opted to usurp the territory reserved for the commission by the constitution; and in doing so they again passed judgement on the professional caliber, legal acumen, judicial skill and quality and the antecedents of the Judicial Commission's nominees," it said.
"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 175-A," the verdict said. It further said that the constitution of the judicial commission itself and its members were the 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," it added.
"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," the verdict said.
Justice Siddiqui, referring to Article 175-A, says, "The provision itself has not provided for the Chief Justice of a High Court to have any special role in the appointment process upon whose objections the Parliamentary Committee had based its arguments. He is just another member of the judicial commission and under rules he has merely been provided the role to initiate the nominations to the chairman of judicial commission which cannot be taken to be the 'recommendation' itself, but is rather to be considered as an act of mere procedure."
About the new appointment process, the verdict said the whole object of the new legislation was to take away the powers of one person and make the process a collective effort. Expressing his wonder, Justice Siddiqui writes, "They 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 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?" he added. Regarding the process adopted by the committee, Justice Siddiqui said, "it 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 175-A."
"The recommendations of the 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. It 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."
Further elaborating his reasoning, Justice Siddiqui said that if it was assumed that the unanimity was not present in the decisions of the Commission by saying 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 175-A, decided to nominate that person to the Parliamentary Committee, could it 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 175-A, and would amount to an incorrect and unconstitutional decision," he added. He said 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. If recommendations of Commission are overturned on the basis of a dissenting view, note or discussion of any individual member then it would render the whole working of the Judicial Commission as futile, he added.
"Doing so would be akin to refusing to recognise 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," the Judge said.
"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 justifiable," he added.
He also agreed with the reasons set out in the concurring opinion of Justice Jawwad S. Khawaja, who also added an additional note. An additional reasoning in the 86-page decision is also contributed by Justice Jawwad S Khawaja, another member of the bench.
He says the issue raised before them 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 justicability 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 they exercise review and applies all the constitutional principles.
Referring to the arguments of Additional Attorney General, he says that 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, therefore, they are not left in any doubt that these cases are eminently suitable for the exercise of jurisdiction under Article 184 (3) of the Constitution.
He says that in term of Article 175-A it is crucial for them, consistent with reason, to look at the Constitution as a whole "if we are to make sense of Article 175-A organically. Looking at the Constitution any other way would lead the reader astray."
He notes that the 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 it. This principle would apply with even greater force to the Constitution- the supreme law of the land," he adds. About judicial review, he writes "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."
About role of the eight-member Committee, he says that it has been given the appellation of "Parliamentary Committee", and 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. He says if Additional Attorney General arguments that the decisions of the Committee are not amenable to judicial review, a truly unique status higher than the Executive, the Judiciary and Parliament, 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 fundamental principles of the Constitution are not altered, it will not be possible to ascribe such powers to the Committee, while interpreting Article 175-A of the Constitution," he adds.
About role of commission Justice Jawwad S Khawja says, 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 while the executive functionaries on the other hand were considered more suitable for ascertaining the antecedents of judicial appointees.
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, he added. He also admits that 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.
On March 4, the Supreme Court had overturned the eight-member bipartisan Parliamentary Committee's decision of rejecting one-year extension to six additional judges of the Lahore and Sindh high courts recommended by the Judicial Commission.
A four-judge SC bench, comprising Justice Mahmood Akhtar Shahid Siddiqui, Justice Jawwad S. Khwaja, Justice Khilji Arif Hussain and Justice Tariq Parvez, had issued the order after hearing two identical petitions challenging the PC's decision of declining the JC's recommendation. The court directed the federal government to issue a notification endorsing extension to the six judges in line with the recommendations made by the Judicial Commission at a meeting last month.