P L D 2024 Supreme Court 515 (PLP)

MUHAMMAD ALI MAZHAR, J.

These Civil Petitions for leave to appeal are directed against the judgment dated 10.05.2022, passed by the Peshawar High Court in W.Ps. Nos.712-P/2022, 370-P/ 2022 and 377-P/2022, whereby the writ petitions were allowed and the decision of the Parliamentary Committee (the "Committee") dated 19.01.2022 was set aside with the directions to the Federal Government to implement the recommendations of the Judicial Commission of Pakistan (the "Commission") dated 05.01.2022 and issue the Notification for the appointment of Additional Judges of the Peshawar High Court.

2. The compendious facts of the case are as follows: On 05.01.2022, the Commission convened a meeting at Islamabad to consider the nominations of the following learned persons for elevation as Additional Judges of the Peshawar High Court: 1) Mr. Fazal Subhan District and Sessions Judge 2) Mr. Shahid Khan District and Sessions Judge 3) Dr. Khurshid Iqbal District and Sessions Judge 4) Mr. Kamran Hayat Additional Advocate General, KPK Miankhel 5) Mr. Muhammad Advocate Supreme Court Ijaz Khan 6) Mr. Muhammad Advocate Supreme Court Faheem Wali Decision of the Commission After in-depth discussion, the hon'ble Members of the Commission recommended the nominees mentioned at Serial Nos. 1 to 3 for appointment as Additional Judges of the Peshawar High Court for a period of one year by the majority of ten members, with two members dissenting and one-member abstaining. While nominees at Serial Nos. 4 to 6 were also recommended for appointment as Additional Judges of the Peshawar High Court for a period of one year, by the majority of twelve members with one-member abstaining. The recommendations were forwarded by the Commission to the Committee for confirmation of the aforesaid names for appointment as additional judges of Peshawar High Court. The meeting of the Committee was convened on 19th January, 2022 and decided as under: Decision of the Committee The Committee is therefore of the unanimous opinion that three positions for which three District and Session Judges have been nominated for appointment as Additional Judges of the Peshawar High Court be kept vacant and the names of all the five District and Session Judges namely (i) Mr. Fazal Subhan, (ii) Mr. Shahid Khan, (iii) Dr. Khurshid Iqbal, (iv) Mr. Kaleem Arshad and (v) Mr. Asim Imam may be re-considered keeping into view their seniority and competence. Accordingly the names of three District and Session Judges namely (i) Mr. Fazal Subhan, D&S, (ii) Mr. Shahid Khan, D&SJ and (iii) Dr. Khurshid Iqbal, D&SJ are not confirmed and the matter is referred back for re-consideration as stated herein above. Being aggrieved and dissatisfied with the decision of the Committee, the recommendees at Serial Nos.1 to 3 and one Naeem Ahmad Khattak (Advocate) filed three writ petitions in the Peshawar High Court for setting aside the decision of the Committee. The learned High Court set aside the decision of the Committee and directed the Federation of Pakistan to implement the recommendations of the Commission and issue Notification of appointment.

3. The learned Additional Attorney General for Pakistan ("Addl. AGP") argued that the impugned judgment is not sustainable for the reason that the principles laid down in the case of Munir Hussain Bhatti (infra) were followed by the Committee in letter and spirit and they did not discuss the professional caliber, competency and/or judicial skills of the nominees, but only referred the matter back to the Commission to consider the seniority, suitability and merit. The seven members of the Committee unanimously decided not to confirm the nominations in question and the matter was sent back for reconsideration of seniority which in fact was in true adherence to the principles laid down in the case of Munir Hussain Bhatti (infra). It was further averred that the District and Session Judges senior to the nominees were ignored and superseded without any opportunity of being heard. He further argued that while interpreting a constitutional provision, the approach taken must be dynamic, progressive, and oriented with the desire to meet the situation, and since the Constitution is a living document, therefore it must be liberally interpreted with proper checks and balances. In support of this contention, he referred to the case of Al-Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324). He next argued that the role of the Committee on judges has been dilated on in the case of District Bar Association, Rawalpindi and others v. Federation of Pakistan and others (PLD 2015 SC 401) in which it was held that Article 175A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") marginalized the roles of the President, the Prime Minister and the ruling party in the appointment of judges of the superior courts to avoid any undue influence in appointments. Involvement of the Parliament through a Committee in the process of appointment of Judges of the superior courts was thus not likely to impinge upon the independence of the judiciary and it also did not offend the concept of separation of powers between the Judiciary and Executive. It was further avowed that this Court in the aforesaid case also held that where the Committee provided a valid objection against a nominee of the Commission, the Committee had to give its reasons and the Commission, upon receipt thereof, had to reconsider the nominee's suitability to hold judicial office. It was further contended that the purpose of the Committee is to make the process of appointment of Judges in the Superior Courts more transparent and fair, and if its role is reduced then it might defeat the very purpose of making of such Committee. It was further averred that the learned High Court while rendering the impugned judgment failed to appreciate the true spirit of Article 175A of the Constitution in which it is the collective power of the Commission to nominate the candidates for appointment and not the Chief Justice's alone.

4. The learned counsel for the private respondents argued that the Committee is not an appellate forum for the Commission. They had no right to reject the recommendations of the Commission and remand the matter back to reconsider the nominations. He further argued that the issue of seniority was properly dealt with prior to the Commission sending the recommendations to the Committee. It was further contended that the Committee had exceeded its authority and travelled beyond its jurisdiction, and made an attempt to re-examine and review the recommendations of the Commission with regard to the three recommendees and unnecessarily raised the issue of seniority instead of evaluating the antecedents of the candidates. The learned counsel further argued that the issue of seniority with other District and Sessions Judges was discussed by the Commission and, being a highest constitutional body, it made an objective evaluation regarding the suitability of the nominees which could not be revised by the Committee in any manner.

5. Heard the arguments. To begin with, we would like to accentuate that the Federation of Pakistan in both the Civil Petitions has taken a common ground of challenge "A" which is reproduced as under: "That the impugned judgment of the Peshawar High Court could not be sustained since the principle of this August Court as laid down in the case of Munir Hussain Bhatti (PLD 2011 SC 407) were followed by the Committee in letter and spirit, for the Committee did not discuss the professional caliber, competency and judicial skills rather than it by following constitutional criteria referred the matter back to the Commission to further deliberate upon the seniority, suitability and merit."

6. The impugned decision of the learned High Court is predominantly rooted in the dictum laid down in the case of Munir Hussain Bhatti (infra). The exactitudes of Article 189 of the Constitution command that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan. Reference to the case of Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483) is somewhat pertinent in which it was concluded by this Court that where the Supreme Court deliberately, and with the intention of settling the law, pronounces upon a question of law, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 and is binding on all the Courts of Pakistan. It cannot be treated as mere obiter dictum. It was further held that even obiter dictum enjoys a highly respected position as if "it contains a definite expression of the court's view on a legal principle or the meaning of law". Being sanguine and mindful of the binding effect, the learned Addl. AGP himself asserted that the Committee's action of non-confirming the name of nominees and remanding the nominations for reconsideration is not against the dictum laid down in the Munir Hussain Bhatti case (infra); in fact, it was in consonance with the said decision in letter and spirit which needs to be explored and resolved by dint of this judgment.

7. The procedure for appointment of Judges is provided under Article 175A of the Constitution by means of the Commission. In pith and substance, the aforesaid Article articulates a collegium for the appointment of Judges of the Supreme Court, appointment of the Chief Justice and Judges of a High Court, and the Chief Justice and judges of Federal Shariat Court. According to the niceties of sub-article (8), the Commission by majority of its total membership nominates to the Committee the person for each vacancy of a judge. Whereas sub-article (9) establishes the collegium referred to as the Committee and, in view of sub-article (12), the Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed. It is further enumerated that the Committee, for reasons to be recorded, may not confirm the nomination by a three-fourth majority of its total membership, and, 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 and, thereafter, the Commission shall send another nomination.

8. In exercise of the powers conferred by sub-article (4) of Article 175A of the Constitution, the Commission vide S.R.O.122(KE)/ 2010, framed the Judicial Commission of Pakistan Rules, 2010 ("JCP Rules"). According to Rule 3, for each anticipated or actual vacancy of a Judge in the Supreme Court, or the Chief Justice of the Federal Shariat Court, or the Chief Justice of a High Court, the Chief Justice of Pakistan shall initiate nominations in the Commission for appointment against such vacancy and, according to sub-rule (2), for each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court shall initiate and send the nomination for appointment against such vacancy to the Chairman for convening a meeting of the Commission. Compliant with Rule 4, the proceedings of the Commission are to be regulated by the Chairman and the proceedings of the Commission shall be conducted under Rule 5 and whenever a nomination is received under Rule 3, the Chairman shall call a meeting of the Commission on the date, time and place determined by him and notified by the Secretary to each member. While in sub-rule (2) of Rule 5, the Commission may call for any information or record required by it from any person or authority for the purposes of carrying out its functions and, under Sub-rule (3), the nominations made by the Commission are forwarded to the Committee. Under Rule 6, the Chairman may constitute one or more committees of members for such purpose as may be deemed necessary.

9. Pursuant to the powers conferred by sub-article (17) of Article 175A of the Constitution, the Committee vide S. R.O.11(I)/ 2011, dated 06.01.2011, also framed the Parliamentary Committee on Judges Appointment in the Superior Courts Rules 2010 ("PC Rules"). Consistent with Rule 3, the Committee has the powers to summon or invite any person or call for any information or record required by it from any person or authority for the purpose of carrying out its functions and may also call the person nominated for a judicial vacancy for an interview. According to the functions of the Committee enumerated under Rule 4, the nomination received by the Secretary from the Commission shall be placed before the Chairman for calling a meeting of the Committee and, as per sub-rule (2) of Rule 4, the Committee, after considering the nomination, may confirm the nominee by a majority of its total membership within fourteen days of the receipt of the nomination, failing which the nomination shall be deemed to have been confirmed. However, under sub-rule (3) of Rule 4, it is further explicated that the Committee, for reasons to be recorded, may not confirm the nomination by a three-fourth majority of its total membership within the said period and, according to sub-rule (4), the Committee in case of non-confirmation shall forward its decision with reasons to the Commission through the Prime Minister for sending another nomination.

10. The learned Addl. AGP raised an argument that the hon'ble Chief Justice of Pakistan ("HCJP"), acting as the Chairman of the Commission, cannot initiate the nomination, rather it is the power of the Commission as a whole; and initiating the process of appointment at the sole discretion of the HCJP is violative of the principles of natural justice. The Rules framed by the Commission and the Committee pursuant to Article 175A of the Constitution (the "Rules") are both very much in field and have never been challenged before any forum. In exercise of the powers delegated under the aforesaid Rules, the HCJP has the authority to initiate nominations in the Commission for the appointment for each anticipated or actual vacancy of a Judge in the Supreme Court, or the Chief Justice of the Federal Shariat Court, or the Chief Justice of a High Court; and for each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court shall initiate and send nominations for appointment against such vacancy to the Chairman of the Commission, the HCJP, for convening a meeting of the Commission. The argument is misconceived in view of the existing Rules framed under Article 175A of the Constitution. Though under the Rules the nomination is to be made by the Chief Justice of the respective High Court for the appointment of judges but the minutes of meeting reflect that the hon'ble Chief Justice of the Peshawar High Court ("Chief Justice (PHC)") avowed that the names proposed for elevation as additional judges were also supported by all the judges of the Peshawar High Court. A similar statement of the senior puisne Judge (PHC), Mr. Justice Rooh-ul-Amin Khan, is recorded in the minutes that the nominations have been initiated after consultation with each hon'ble Judge of the High Court.

11. The nitty-gritties of the judgment rendered by a four member bench of this Court in the case of Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 407), divulge that two Constitutional Petitions under Article 184(3) of the Constitution were filed to challenge the decisions of the Committee whereby it refused to confirm the nominations made by the Commission for extension in the tenure of four additional judges of the Lahore High Court and two additional judges of the Sindh High Court. The petitioners entreated to quash the recommendations of the Committee with the direction to implement the recommendations of the Commission and issue a Notification. For the ease of convenience, some of the most important and relevant excerpts from the aforesaid judgment are replicated as under:

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. 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, 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.

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.

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 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.

12. To revisit the judgment rendered by this Court in the Munir Bhatti case (supra), a Review Petition was also filed by the Federation of Pakistan which was dismissed vide judgment titled Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatti and others (PLD 2011 SC 752). The operative portion is reproduced as under:

18. Regardless of the above discussion, it must be stressed here that though the Commission and the Committee perform essentially the same functions as the Chief Justice and the Prime Minister in the previous dispensation, it would 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. This provides capacity to the Commission which enables it to have information about, and consider what in our jurisprudence are referred to as 'antecedents', of a potential nominee for judicial office. 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.

19. There may, 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. 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. It is precisely this function which has been emphasized on behalf of the Federation in the synopsis of arguments referred to above, wherein it has been said, inter alia, that the Committee may "be concerned in calling for intelligence reports which was the function of the Governor under the old system...".

21. It is clear that the observations which form the sole basis of the Committee's decision represent at best the pre-deliberation views of the Chief Justices of the two High Courts. These views may or may not have an empirical basis. It would be for the Commission, assembled as a collegium to examine the same and to decide whether or not these views adhere to the objective standards considered appropriate or relevant by the collegium. This is the essential function of a collegium responsible for making a collective decision. Our jurisprudence is familiar with instances of collective decision making, be these in University Syndicates, Boards of Trustees/ directors or statutory authorities etc. The hallmark of such decision-making is that each member of the collegium brings his own views - informed or uninformed, subjective or reasoned - to the collegiate body. It is there that all views are either synthesized into an objective decision, or a member of the collegiate body, who disagrees with the collective view, records his dissent.

22. In the facts of this case, the relevant collegiate body, the Commission, unanimously agreed to recommend the contentious names after discussion. The Committee, therefore, could not rely on the pre-discussion views of the one member of the Commission respectively in each case, without providing any independent reasoning. The Committee did not have any information before it for treating the tentative views of the two Hon'ble Chief Justices as empirical fact nor did it consider the objective standards which informed the unanimous opinion of the Commission. It is this aspect of the petitions which has been of concern to us and has justifiably been given importance. The Committee could still have disagreed with the Commission within the ambit previously reserved for the Prime Minister, if it had any reasons of its own to justify a different opinion. This process, if adhered to, would have been consistent with the role which was earlier envisaged for the Prime Minister...

23. Therefore, if in future the Committee decides to subordinate itself to the opinion of one member of the Commission, it must, under accepted norms of judicial scrutiny, give its own reasons for making this choice. Without such reasons which are capable of withstanding judicial scrutiny, the opinion of the Committee can only be termed as unreasoned and arbitrary. Our jurisprudence as a rule strikes down arbitrary and unreasoned exercise of discretionary power, particularly when the law requires that reasons be given by the decision maker for such exercise of power. Reference can be made to the case titled Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61) if authority is required for this established principle of law. Thus, if at all, a legal principle is to be deduced from our judgment in the light of Article 189, it would be that the Committee does not have untrammeled powers to choose, without sound reasons, the unconsidered views of one member of the Commission out of thirteen, while discarding the considered views of all thirteen members together or of the remaining twelve members. The decisions of the Committee must meet the usual and well recognized standards of objectivity and application of mind, amongst other standards.

13. A similar controversy arose in the case of Sindh High Court Bar Association, Sukkur v. Pakistan through Secretary Ministry of Law Parliamentary Affairs and Justice, Islamabad and another (PLD 2012 Sindh 531), where two constitution petitions were filed by the Sindh High Court Bar Association, Sukkur and the Sindh High Court Bar Association, Karachi, in the Sindh High Court against the decision of the Committee whereby it refused to confirm the nominations made by the Commission for two learned Sindh High Court judges. The constitution petitions were heard by a full bench (three-members) of the Sindh High Court whereby it was held that the decision of the Committee not only suffers from illegality, irrationality and procedural impropriety, but in a large part has purportedly been made for considerations which are clearly beyond the well prescribed domain of the Committee and, as a consequence thereof, the impugned decision of the Committee was set aside. The judgment was authored by Justice Maqbool Baqar (as he then was). His lordship, while relying on the dictums rendered in the case of Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 407), Al-Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324), Sharaf Faridi and others v. Federation of the Islamic Republic of Pakistan and another (PLD 1989 Karachi 404), Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869), Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan and others (PLD 2010 SC 61), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879), held in paragraph 10 of the judgment that in our jurisprudence, it is now well settled (i) that the independence of the judiciary and the concept of separation of powers are the cardinal principles of our Constitutional scheme; (ii) that the independence of the judiciary is inextricably linked and connected with the process of appointments of the Judges of the Constitutional Courts; (iii) that the evaluation of the calibre, competence, legal acumen, and the overall suitability of a nominee for appointment as a Judge of a Constitutional Court falls exclusively within the domain of the judicial consultees; (iv) that the decision of the Commission is not justiciable; (v) that the scope of the Committee's function and competence is limited to consider the antecedents, to be examined on the basis of material obtained by the Committee/executive; (vi) that the Committee can refuse to accept the nomination of the Commission only on the basis of antecedents, such as character, moral and/or financial integrity; (vii) the Committee's refusal to accept the nomination by the Commission should be based on very strong reasons pertaining to the criteria falling within the former's domain; and (viii) that the reasons, as above, are justifiable and are amenable to judicial scrutiny/ review. A

14. The aforesaid judgment rendered by the Sindh High Court was also challenged in this Court which was decided by a four-member bench in the case of Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another (PLD 2012 SC 1067). The Court while relying on the dictum laid down in the case of Munir Hussain Bhatti (supra), dismissed the petition and held that the essential function of a collegium is its responsibility to make a collective decision by examining any observations made and deciding whether or not those views adhere to the objective standards considered appropriate or relevant by the collegium. Our jurisprudence is familiar with instances of collective decision making, be they in University Syndicates, Boards of Trustees/ directors or statutory authorities etc. The hallmark of such decision-making is that each member of the collegium brings his own views, informed or uninformed, subjective or reasoned, to the collegiate body. It is there that all views are either synthesized into an objective decision, or a member of the collegiate body, who disagrees with the collective view, records his dissent. This Court reiterated that the ratio of the Munir Hussain Bhatti case (supra) is fully applicable and was rightly relied upon by the three-member bench of the Sindh High Court. A

15. A reading of Article 175A of the Constitution makes it abundantly clear that two different limbs have been created to examine and scrutinize the nominations of judges for appointment in the superior Courts, but it is apparent that the Committee is neither vested with any role to act as an appellate forum for the Commission, nor does the Committee have any right or authority to remand the nomination for reconsideration to the Commission. The role of the Committee is confined to the confirmation, or non-confirmation, of the name nominated and, in case the nomination is not confirmed, the reasons thereof shall be sent to the Commission for sending another nomination. Here the Committee remanded the matter to the Commission for fresh consideration due to the alleged seniority issue, which exercise of powers by the Committee is alien to Article 175A of the Constitution. The independence of the Judiciary is a basic principle of constitutional governance in Pakistan. It is a well settled exposition of law that a written constitution is, in essence, a form of statute which needs to be interpreted liberally. It is also a well settled principle of interpretation that the Constitution has to be read holistically as an organic document which contemplates the trichotomy of powers between the three organs of the State, namely, the Legislature, the Executive, and the Judiciary. The doctrine of pith and substance lays much emphasis on comprehending and figuring out the exact characteristics of constitutional provisions. The concept of purposive interpretation places an obligation upon the Courts to interpret the statute or the Constitution keeping in mind the purposefulness for which the provision in question was legislated with a dynamic and result oriented approach rather than construing it in a restrictive or stringent sense. According to Salmond's Jurisprudence, interpretation or construction is the process by which the courts seek to ascertain the meaning or intention of the legislature through the medium of the authoritative forms in which it is expressed. The interpretation of the Constitution becomes more important when there is a need to harmonize it with the democratic principles of the State. The role and powers assigned to the Commission and Committee in the Constitution as two of the most important limbs of the judicial appointment process is also to be vetted under the doctrine of harmonious interpretation which is akin to the notion of an extensive approach within the basic structure and constitutional scheme.

16. Seemingly, the bone of contention was with regard to the breach of seniority due to which the Committee did not confirm the names of the District Judges as recommended by the Commission. We have also scanned the minutes of meeting of the Commission. The gist of the minutes reflects that the Chairman of the Commission invited the Chief Justice (PHC) to brief the Commission about the nominations. He briefed that 586 Judicial officers are working in the judiciary of Khyber Pakhtunkhwa, from whom three have been nominated to be considered; he also cited the reasons for superseding the three senior District Judges. He also brought to the notice of the Commission that after sending the nominations, the Service Tribunal for Subordinate Judiciary, vide judgment dated 18.12.2021, allowed the appeal of Mr. Kaleem Arshad, District and Sessions Judge, and the implementation of the judgment will give an edge to Mr. Kaleem Arshad over the three judges whose names have been recommended. It is further highlighted from the discussion that Mr. Justice Rooh-ul-Amin Khan (senior puisne Judge, PHC) added that the case of Mr. Kaleem Arshad will be placed before the Administrative Committee for re-fixing his seniority in accordance with the said judgment. He further added that the judgment is also subject to challenge before the Supreme Court by the High Court or by those who are affected. The Chief Justice (PHC) observed that, due to this judgment, his order of recommendations from the cadre would change placing Mr. Kaleem Arshad at Serial No.

1. In response, the Chairman of the Commission asked the Chief Justice (PHC) whether he would like to include the name of Mr. Kaleem Arshad in the list of recommendees, or whether he desires to withdraw the nominations. It is also evident from the discussion that the Chief Justice (PHC), though he affirmed that the judgment is in the field, but on the query of the Chairman, the Chief Justice (PHC) stated that he would stand by the nominations. So far as the matter of Mr. Asim Imam is concerned, due deliberation was made on his service record and it is also mentioned in the minutes that he was superseded twice before, in the year 2020, when two lists for appointment came up before the Commission which were initiated by the then Chief Justice Mr. Justice Waqar Ahmed Seth, and there appeared to be a consensus. Similarly, the service record of Mr. Hamid Mughal was also considered but he was not recommended and it is pertinent to point out that even the Committee has not sent his name for reconsideration, whereas the dossier of Mr. Kaleem Arshad was not before the Commission for the reason that his name was not recommended by the Chief Justice (PHC) and the decision in his service appeal was rendered after the nominations had been sent to the Commission. Though no right of appeal is provided to an aggrieved person under the Constitution or the Rules against a decision of the Commission and Committee, nor can the proceedings before the Commission be considered a 'trial' within the meaning of Article 10A of the Constitution, but in all fairness, it is clear that the nominations were finalized by the Chief Justice (PHC) in consultation with his fellow judges at the High Court and then proposed for recommendation to the Commission, and it is reflected from the minutes of meeting of the Commission that, after due diligence of the service record, and deliberation on the issue of seniority, the recommendations were made by a majority of the members with their collective wisdom.

17. In view of the fact that the elevation of District Judges corresponds with and reckons from the service cadre, therefore for all practical purposes, the guiding principle as accentuated and envisioned in the civil servant structure may be contemplated to appreciate the phraseology of seniority-cum-fitness and/or seniority-cum-merit. In fact, the seniority system is fundamentally an arrangement which acknowledges and corroborates the length of service for consideration of the dossier by the Departmental Promotion Committee or Selection Board under Civil Service for promotion or any other progression. However, while considering the eligibility for promotion or progression, the predominant factor is not solely seniority, instead it is always coupled with fitness and/or merit. Seniority or length of service is not considered a solitary benchmark or standard, in fact competence, antecedents and credentials are also predominant components for progression to the particular post. In the normal course of things, fitness comes first and seniority is given weightage when merit and ability are more or less equivalent among the contenders. One view is that meritocracy is a system in which talented and hardworking personnel are chosen for promotions based on achievements and not because of their seniority or length of service. In the case of Muhammad Amjad v. Director General, Quetta Development Authority and another (2022 SCMR 797 = 2022 PLC (C.S.) 594), it was held that the promotion is not a vested right, but it depends on the eligibility as well as fitness of the candidate. The concept of eligibility implies a qualification to be appointed or promoted, whereas determination of fitness encompasses a person's competence to be chosen or selected for appointment or promotion subject to the availability of post on which the credentials and antecedents of person could be examined for examining his merits and worthiness for promotion. In the case of State of Mysore v. Syed Mahamood and others (AIR 1968 SC 1113), it was held that where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. But these are not the only modes for deciding whether promotion is to be granted or not.

18. The minutes of the Commission's meeting further expressed that the hon'ble Chairman of the Commission constituted a four-member committee under Rule-6 of the JCP Rules to verify the antecedents of the nominees, and a two-member Committee to verify their professional competence and caliber. It is also revealed from the minutes of meeting that the Chairman of the Commission, after receiving the names, consulted two brother judges from Khyber Pakhtunkhwa in the Supreme Court and the nominations were also supported by Hon'ble Judges from Khyber Pakhtunkhwa and members of the bar. The minutes of meeting of the Commission reflect that, after effectual and lengthy discussion and deliberation, including on the issue of seniority, and considering the pros and cons of the views expressed by the learned members, the Commission, according to the mandate of Article 175A of the Constitution, recommended the nominees (District Judges) for appointment as Additional Judges of the Peshawar High Court by a majority of ten members and forwarded the recommendations to the Committee.

19. It is indisputable that the Committee can neither travel beyond its bounds or limits, nor can it undertake or embark on the role and functions of the Commission. The raison d' tre of enacting Article 175A in the Constitution for the appointment of judges to the superior Courts through the Commission is to make recommendations by majority without according any primacy or supremacy to any individual member. Absolute discretion is not given to any one, not even to the Chairman of the Commission, rather the decision is to be made by majority without any provision for a casting vote where there is a tie among the members. The collegium of the Commission is not a one man show but consists of, amongst others, the Chief Justice of Pakistan, the four senior most judges of this Court, the Chief Justice of the concerned High Courts, the Federal Minister for Law, Justice and Parliamentary Affairs, the Attorney General for Pakistan and representatives of the Bar. The majority decision or recommendation rendered by this Commission cannot be made subject to review by the Committee whose dominion and province of expertise is entirely different. The Commission and Committee are both obligated and duty-bound to act within the spheres of their dominions and command. The realm of powers and jurisdiction of the Commission within the framework of the collegium is to evaluate the professional caliber, judicial skill, legal acumen, personal conduct and suitability of the nominees, which terminus cannot be trespassed or encroached on by the Committee under the region of its powers. In this case too, while remanding the matter to the Commission, the Committee failed to render any independent evaluation or reasoning even with regard to the seniority issue, and instead, on the basis of a discussion among some hon'ble members of the Commission on the issue of seniority, jotted down in the minutes of the meeting, decided to remand the matter for reconsideration without proper application of mind. The Committee cannot make their decision on the basis of minority views expressed during discussion but in totality; the majority discussion must be considered and in case of a variance of opinion, the Committee should provide independent reasoning and the decision should not be based on guesswork or picking and choosing the points from the gist of discussion recorded in the minutes of meeting of the Commission. Under the mandate of Article 175A of the Constitution, the Committee may confirm or may not confirm the candidate with reasons, but there is no power vested in the Committee to call upon the Commission to reconsider the nominations.

20. Though in the memo of petitions it is alleged that the decision of the Committee is in compliance with the dictum laid down in the case of Munir Bhatti (supra), but in our considered opinion, not only the decision of the Committee is in excess of jurisdiction and powers but also against the law laid down in the case of Munir Bhatti (supra). The Committee also failed to realize a crucial factor, that whatever issues were articulated during the discussion by the hon'ble members of the Commission evincing diversified views, including the issue of seniority, were at the end of the day culminated and merged into the majority decision of the Commission and transmitted to the Committee in the shape of recommendations. The threshold of professional skills, calibre, competence, legal acumen, antecedents and over-all suitability of the nominees were considered by the Commission through a collegium of experts in the discipline of law which could not be overturned by the Committee in a perfunctory and unreasonable manner which would frustrate the very purpose of the Commission and render it redundant. At the same time, we are sanguine and mindful that the Committee cannot be considered an ineffectual or superfluous corpus, rather it has the capability and competence to complement value added role in bringing forth judicial appointments by taking into consideration material which is different from and may not have been available to the Commission. The Committee may examine and gauge the antecedents, such as character, moral and or financial integrity and can reach an independent decision on the basis of factual data, if any, collected by them and which was not before the Commission, and communicate its independent reasoning in order to avoid any controversial appointment. A rational demarcation of roles of two constitutional bodies cannot be considered adversarial or on the warpath. Quite the opposite, the object of both bodies is to ensure the appointment of the most suitable and deserving persons as Judges of superior Courts. In the Munir Hussain Bhatti case (supra), this Court laid out the basic elements and fundamentals required to be considered for the appointment of judges, namely acumen, antecedents, caliber, competence, conduct, integrity and suitability. The aforesaid connotations are delineated in the various lexicons as under:

1. Collins Concise Dictionary of the English Language (i) acumen (n.) keenness and quickness of mind (ii) antecedent (n.) 3. [pl.] one's ancestry, past life, etc. (iii) calibre (n.) 4. quality or ability (iv) competence (adj.) 1. well qualified; capable; fit 2. sufficient, adequate (v) conduct (n.) 1. management; handling 2. the way that one acts; behavior (vi) integrity (n.) 3. uprightness, honesty, and sincerity (vii) suitable (adj.) right for the purpose, occasion, etc.; fitting; appropriate

2. Concise Oxford English Dictionary (Twelfth Edition) (i) acumen (n.) the ability to make good judgments and take quick decisions. (ii) antecedent (n.) 2. (antecedents) a person's ancestors and social background. (iii) calibre (n.) 1. quality of character or level of ability. (iv) competence (n.) 1. the quality or extent of being competent. (v) conduct (n.) 1. the manner in which a person behaves. (vi) integrity (n.) 1. the quality of having strong moral principles. (vii) suitable (adj.) right or appropriate for a particular person, purpose, or situation.

3. Chambers 21st Century Dictionary (i) acumen (n.) the ability to judge quickly and well; keen insight. (ii) antecedent (n.) 4. (usually antecedents) a. someone's past history b. someone's ancestry. (iii) calibre (n.) 3. quality; standard; ability. (iv) competence (n.) 1. capability; efficiency. (v) conduct (n.) 1. behavior. (vi) integrity (n.) 1. strict adherence to moral values and principles; uprightness. (vii) suitable (adj.) appropriate, fitting, proper, agreeable, etc.

21. The Munir Bhatti case was decided by a four-member bench of this Court and the same four-member bench heard and dismissed the review petition. The full bench (three-members) of the Sindh High Court decided the constitution petitions based on the ratio decidendi of Munir Hussain Bhatti case (supra) and was challenged again in this Court, but again the four-member bench of this Court reiterated the principles laid down in Munir Hussain Bhatti case which is intact and in field. The doctrine of Stare Decisis is a Latin term that connotes "let the decision stand" or "to stand by things decided". Similarly, the Latin maxim Stare decisis et non quieta movere means 'to stand by things decided and not to disturb settled points'. This represents an elementary canon of law that Courts and judges should honor the decisions of prior cases on the subject matter which maintains harmony, uniformity and renders the task of interpretation more practicable and reasonable while adhering to it for resolving a lis based on analogous facts. The terminology "vertical stare decisis" explicates that the decisions of higher courts should take precedence over the decisions of lower courts which is intensely embedded in the American legal system. Whereas the concept of "horizontal stare decisis" provides that prior decisions made by courts at a particular appellate level should provide some precedent for cases heard by courts of the same appellate level, however horizontal stare decisis is generally seen to be less forceful as compared to vertical stare decisis. The doctrine of binding precedent has the excellence of fostering and disseminating firmness and uniformity and also supports the development of law. The doctrine of stare decisis is to be adhered to as long as an authoritative pronouncement holds the field, until and unless the dictates of compelling circumstances fortified by rationale justify the exigency of a fresh look for judicial review which has not been done so far for revisiting the dicta laid down in the case of Munir Hussain Bhatti case (supra) which has binding effect under the doctrine of binding precedent. No doubt according to the hierarchical fa ade and veneer of our judicial system, the dominant consideration is that the law declared by this Court should be certain, translucent and rational, as most of the decisions not only constitute a determination of rights of the parties, but also set down a declaration of law in service being a binding principle in future cases as a valuable tool of development in the jurisprudence of law. At this point, it would be appropriate to refer to the relevant excerpts appearing at page 47 and 50 of the Treatise on the Constitutional Limitation authored by Thomas M. Cooley who expounded as under:- And as to the first, we understand the rule to be, that a decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision; and the judgment of the Court imports absolute verity. Whatever the question involved, whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed. The rule of conclusiveness to this extent is one of the most inflexible principles of the law; in so much that even if it were subsequently held by the Courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto. A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a Court of appeal or review, and never by the same Court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law.

22. At this juncture, we cannot ignore the doctrine of precedents vis- -vis stare decisis, since both have fundamental values engrained in our judicial system to ensure an objective of certitude and firmness. Judicial consistency advocates and encourages the confidence in the judicial system and to achieve this consistency, the Courts have evolved the aforesaid rules and principles which are grounded in public policy. The aforesaid doctrine has been expressed in various law lexicons as under:

1. Black's Law Dictionary (Tenth Edition) (at pages 1626 to 1627) The rule of adherence to judicial precedents finds it expression in the doctrine of stare decisis. This doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases." William M. Lile et al., Brief Making and the Use of Law Books 321 (Roger W. Cooley and Charles Lesley Ames eds., 3d ed. 1914). The general orthodox interpretation of stare decisis ... is stare rationibus decidendis ('keep to the rationes decidendi of past cases'), but a narrower and more literal interpretation is sometimes employed. To appreciate this narrower interpretation, it is necessary to refer ... to Lord Halsbury's assertion that a case is only authority for what it actually decides. We saw that situations can arise in which all that is binding is the decision. According to Lord Reid, such a situation arises when the ratio decidendi of a previous case is obscure, out of accord with authority or established principle, or too broadly expressed." Rupert Cross and J.W. Harris, Precedent in English Law 100-01 (4th ed. 1991).

2. Words and Phrases (Permanent Edition), Volume 39A (at page 602) The doctrine of "stare decisis" requires that rules of law when clearly announced and established by a court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. Walker v. Bumiller, Ohio, 27 O.C.D. 366, 25 Cir.Ct.R., N.S.,

385. The doctrine of "stare decisis", meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite, and known, and that, when the law is declared by court of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. In re Proposal to Incorporate Town of Chesapeake, Kanawha County, 45 S.E.2d 113, 118, 130 W.Va. 527.

3. American Jurisprudence (Second Edition), Volume 20 (at page 521) "While res judicata applies only when the same parties, or their privies, are involved in the subsequent ease as were involved in the prior case, the applicability of stare decisis is not affected by the fact that different parties are involved in the case where the precedent was established. Res judicata applies to decisions of both law and fact. Stare decisis, on the other hand, is applicable only on questions of law. Res judicata is a rule of law that must be applied even where the decision binding as res judicata was erroneous, whereas stare decisis is a judicial policy in which a certain flexibility is inherent, and which, therefore, does not prevent a Court from overruling its prior decision if, upon re-examination thereof, it is convinced that the decision was erroneous. It has also been pointed out, as a difference between res judicata and stare decisis, that stare decisis is based upon the legal principle or rule involved in a prior case and not upon the adjudication which resulted therefrom, whereas res judicata is based upon the adjudication.". [Ref: Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145)]

4. Understanding Statutes: Canons of Construction (Fourth Edition), S. M. Zafar, External Aids to Interpretation (at pages 752 to 756) The principle of stare decisis relates to decisions followed for a long time if a statutory provision of some ambiguity or doubtful meaning is interpreted by higher courts and same has been followed by long period of time and has been acted upon by persons in formation of contracts or in disposition of property or in legal procedures shall not be ordinarily overruled thus the court adopts a policy to stand with the previous judgment... The principle of stare decisis is a greatly valuable doctrine of common law and court should stand by precedents and should not disturb them but this rule is not so inflexible which precludes a departure therefrom in any case... However, a rider has been added that previous decisions should not be followed to the extent that grievous wrong may result and accordingly the courts ordinarily will not adhere to a rule of principle established by previous decision which they are convinced is erroneous... Lord Eldon said 'it is better the law should be certain' that every judge should speculate upon and 'than that every judge improvement in it'. Lord Ellenborough observed it is extremely dangerous to shake the authority of decided cases'. In 1919 Lord Buckmaster, enunciated the principle on which the rule of stare decisis is based. "Firstly, the construction of a statute of doubtful meaning once laid down and accepted for a long period of time ought not to be altered.... Secondly, that the decision upon which title to property depends or which by establishing principles of construction otherwise form the basis of contracts ought to receive the same protection. Thirdly, decisions affecting the general conduct of affairs, so that their alteration would mean that taxes had been unlawfully imposed or exemption unlawfully obtained, payments needlessly made or the position of the public materially affected, ought in the same way to continue."

5. Pir Bakhsh thr. L.R.s and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145). "Elaborating further, it is the policy of the Courts to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine of rule of stare decisis. This rationale behind this policy is the need to promote certainty, stability, and predictability of the law. This, however, does not mean that this rule is inflexible.

17. This Court's jurisprudence has shown that usually the courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. This Court regards the use of precedent as indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the Rule of law. As the Chief Justice of the Supreme Court of the United States, John Roberts observed during his Senate confirmation hearing, "It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness". [Congressional Record-- Senate, Vol. 156, Pt. 7, 10018 (7-6-2010).]

23. To conclude, we have no hesitation in our mind while holding that the judgment in the case of Munir Bhatti (supra) is very much in field which was also reiterated and reaffirmed by a bench of equal strength in the case of Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another (PLD 2012 SC 1067). The foregoing situation also resonated that the judgment of a bench of larger strength is binding on a bench of smaller strength. We have also noted in the case in hand, the entire decision of the Committee of remanding the nominations of District and Sessions Judges for reconsideration is based solely on the views expressed by two hon'ble members of the Commission on the issue of seniority but in the end, the nominations were made by majority. There is no indication in the decision of Committee that any independent vetting was done by the Committee with regard to the antecedents, character, and integrity, instead the Committee has relied entirely on the pre-discussion and deliberation of the members of the Commission made prior finalizing the recommendations. The Committee's act of remanding the matter to the Commission for reconsideration was not only against the command and mandate of Article 175A of the Constitution, but also transgression of the enabling Rules and the hierarchy identified and demarcated for the functioning of the Commission and Committee, hence, in our view, the learned High Court rightly set aside the decision of the Committee.

24. So far as aforementioned C.M.As. filed by Mr. Muhammad Hamid Mughal are concerned, he has sought permission of this Court for filing his C.P.L.As. and also allowing him to proceed and argue the accompanying petitions in his personal capacity on the ground that he was not impleaded in writ petitions filed in the High Court due to which his constitutional, legal and vested rights have been adversely affected and he was condemned unheard and deprived from his nomination, consideration, and recommendation as an Additional Judge of the Peshawar High Court. The minutes of meeting of the Commission divulge that, though the name of Mr. Hamid Mughal was not nominated by the Chief Justice (PHC), the Committee constituted by the Chairman of the Commission considered the reasons for his supersession and also examined his service record. In the majority decision of the Commission, his name was not recommended for confirmation by the Committee. Even the minutes of the Committee meeting exhibit that the candidature of Mr. Hamid Mughal was never discussed, and according to the decision of the Committee they only remanded the names of (i) Mr. Fazal Subhan, (ii) Mr. Shahid Khan, (iii) Dr. Khurshid Iqbal, (iv) Mr. Kaleem Arshad, and (v) Mr. Asim Imam for reconsideration based on seniority and competence. If the applicant of the C.M.As. was aggrieved, he should have filed an independent writ petition in the High Court and should not have waited to be impleaded by the writ petitioners. Even keeping aside the recommendations of the Commission for a short while; the moot question is that the name of the applicant was also not considered by the Committee. Neither he was recommended by the Commission after due deliberation and consideration by majority, nor his credentials or antecedents were discussed by the Committee for sending back his name for reconsideration with the other contenders, therefore, he is neither a proper nor necessary party and the challenge to the impugned judgment will also not help out the applicant who is neither part of recommendations of the Commission, nor the Committee and both the decisions, at least to the applicant's extent, cannot be upset under the doctrine of past and closed transactions with the regard to the consideration and recommendation by the Commission and Committee at least for the present batch of nominees. Consequently, the aforesaid C.M.As. are not maintainable, however the rejection of the C.M.As. will not constitute any stigma against the applicant.

25. The aforesaid Civil Petitions along with the C.M.As. were decided vide short order of the Court on 30.5.2023 as under: 1) C.Ps. Nos.2314, 2317 and 2318/2022 by majority of two to one (Mr. Justice Athar Minallah dissenting) are dismissed. Leave to appeal is refused. 2) C.M.As. Nos. 863-P, 866-P and 869-P/2022 are unanimously held not to be maintainable and dismissed.

26. Above are the reasons assigned to the judgment in majority in support of paragraph No.1 of the short order dated 30.5.2023 together with the unanimous order for dismissing the CMAs mentioned in paragraph No.2 of the short order. Sd/- Judge Sd/- Judge My reasons for allowing the petitions pursuant to granting leave are appended separately. Sd/- Judge ORDER ATHAR MINALLAH, J.

The Federation of Pakistan and other private petitioners have sought leave against the judgment, dated 10.05.2022, of the Peshawar High Court whereby the decision of the Parliamentary Committee ("Committee"), established under Article 175A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), dated 19-01-2022, was set-aside and a writ was granted to give effect to the nominations forwarded by the Judicial Commission ("Commission").

2. The Chief Justice of the Peshawar High Court had initiated the cases of six candidates for elevation as judges against the vacancies in terms of rule 3 of the Judicial Commission of Pakistan Rules, 2010 ("Rules of 2010"). The proposed candidates included three each from amongst the members of the Bar and the District Judiciary respectively. The Chairman i.e. the Chief Justice of Pakistan, called the meeting of the Commission on 05.01.2022 to consider the proposed candidates. After exhaustive deliberations, which were duly recorded in the minutes of the meeting, dated 05.01.2022 ("minutes of the meeting"), the Commission, by a majority of ten to two, decided to nominate the three judicial officers while in the case of the members of the Bar, the proposed candidates were approved by a majority of twelve. One of the members chose to abstain and the reasons have been duly recorded in the minutes. Consequently, the nominations were forwarded to the Committee along with the Commission's record. The latter, in its meeting held on 19.01.2022, unanimously confirmed the nominated candidates from amongst the members of the Bar. However, the nominations of the three judicial officers from the District Judiciary were not confirmed. Nonetheless, the Commission was advised to reconsider the matter by examining the suitability of all the eligible judicial officers. The relevant portion of the minutes of the meeting is reproduced as follows:- "While considering the nominations of Mr. Fazal Subhan, D&SJ, Mr. Shahid Khan, D&SJ and Dr. Khurshid Iqbal, D&SJ the Committee perused the record/details forwarded by the Judicial Commission of Pakistan along with other record available before it and decided as under: "The Committee has gone through the observations and recommendations of the Judicial Commission of Pakistan. District and Session Judges Mr. Kaleem Arshad and Mr. Asim Imam have been superseded without any adequate material against them regarding their integrity and competence. Furthermore, the seniority of Mr. Kaleem Arshad has to be re-fixed by the "Administrative Committee" in accordance with the judgment pronounced by the Service Tribunal in his favour. Mr. Kaleem Arshad would then be placed at Serial No.1 due to supersession of senior most District and Session Judge Mr. Asim Imam. Thus it is apparent that Mr. Asim Imam though placed at Sr. 1 in order of seniority has been superseded from being elevated as a Judge of the High Court. It has been mentioned in the minutes that Mr. Asim Imam is a very brave and courageous officer who served for three years as ATC Judge in Swat during the time of uprising. He also remained ATC Judge at Kohat where he was dealing with miscreants in Hangu. The Judicial Commission of Pakistan has not been able to judge the competency of Mr. Kaleem Arshad and Mr. Asim Imam D&SJs as the judgments pronounced by them were not placed in front of them being not recommended for elevation/ appointment. From the above not only the issue of seniority will arise but also discrimination will take place if the three nominees namely (i) Mr. Fazal Subhan, D&SJ, (ii) Mr. Shahid Khan, D&SJ (iii) Dr. Khurshid Iqbal, D&SJ are confirmed by the Parliamentary Committee. The Committee is, therefore, of the unanimous opinion that three positions for which three District and Session Judges have been nominated for appointment as Additional Judges of the Peshawar High Court be kept vacant and the names of all the five District and Session Judges namely (i) Mr. Fazal Subhan (ii) Mr. Shahid Khan (iii) Dr. Khurshid Iqbal, (iv) Mr. Kaleem Arshad and (v) Mr. Asim Imam may be reconsidered keeping in view their seniority and competence. Accordingly the names of three District and Session Judges namely (i) Mr. Fazal Subhan, D&SJ (ii) Mr. Shahid Khan, D&SJ (iii) Dr. Khurshid Iqbal, D&SJ, are not confirmed and the matter is referred back for reconsideration as stated herein above."

3. It is an admitted position that the Chief Justice of the High Court had not proposed the four judges of the District Judiciary, who were senior and thus eligible to be considered by the Commission and, consequently, the relevant record was also not placed before its members. The names were initiated for consideration of the Commission by the Chief Justice of the High Court in terms of rule 3 of the Rules of 2010. As will be discussed later, there was no clog on the inherent power of the Commission to have called for the record relating to the superseded senior judicial officers so as to enable its members to satisfy themselves whether the exclusion was justified. The Commission, despite strong reservations raised by some of its members, nominated the proposed candidates for the consideration of the Committee as required under clause (12) of Article 175A of the Constitution. The Committee, after deliberations and by a three fourth majority, did not confirm the nominations of the judicial officers. The non-confirmation was challenged by the judicial officers before the High Court by invoking its jurisdiction vested under Article 199 of the Constitution. The petitions were allowed vide the impugned judgment. The High Court granted a writ, directing the executive to issue the notifications of the respondents pursuant to the decision of the Commission. The writ granted by the High Court had the effect of rendering sub-articles (9) to (13) of Article 175A redundant and thus the process of appointment of judges prescribed under the Constitution was circumvented by preventing the Committee from exercising its constitutional duty. In order to appreciate the questions raised before us it would be beneficial to examine the proceedings of the Commission, which were duly recorded in the minutes of the meeting.

4. Proceedings of the Commission recorded in the minutes It is not disputed that the candidates were proposed to the Commission by the Chief Justice of the High Court and, while doing so, four eligible senior judicial officers of the District Judiciary had been excluded, rather superseded. The relevant record relating to the superseded officers was also not placed before the Commission so as to enable its members to independently satisfy themselves, as a collegium, whether the decision was justified, fair and germane to the purpose for which the Commission has been established under Article 175A of the Constitution. The minutes of the meeting manifest that the Subordinate Service Tribunal (Tribunal) vide its judgment, dated 18.12.2021, had allowed the appeal of one of the superseded judicial officers, Kaleem Arshad, and undeniably he had become senior to the proposed judicial officers. The Chief Justice, in the meeting, had not raised any reservation regarding his competence, integrity or other antecedents, rather, at one stage he agreed not to fill one vacancy so that his case could be initiated for consideration. The members of the Commission had suggested that consideration of the judicial officers be deferred but the Chief Justice of the High Court was not inclined, solely on the ground that there was a considerable 'backlog' of cases. The Chief Justice of the High Court had raised questions regarding the integrity of the senior most superseded judicial officer, Asim Imam, but the opinion could not be substantiated on the basis of any material let alone credible information. Most of the members were of the opinion that condemning the judicial officer in the circumstances would not be fair and just. The member representing the Bar, on the other hand, had appreciated the performance of the judicial officer while posted as the presiding judge of the anti-terrorism courts at Kohat and Swat during the most challenging times. The third superseded senior judicial officer was alleged to have been involved in domestic violence. He was said to have been nominated in a criminal case which had been registered on his wife's complaint. According to the minutes, the trial was terminated on the basis of compromise between the parties. The fourth superseded officer, in the opinion of the Chief Justice of the High Court, was not competent though he was posted as a presiding judge of a competent court. The minutes manifest that the suppression of the four judicial officers had the concurrence of all the judges of the High Court because, according to the statement of the Chief Justice, they had been consulted before sending the proposals to the Commission. It is obvious from the minutes of the meeting that most of the members of the Commission were of the view that the matter be deferred so that all the eligible judicial officers could be considered. The Commission ultimately gave primacy to the subjective opinion of the Chief Justice despite the strong reservations raised by members and without forming an independent opinion pursuant to examining the relevant record. The members of the committee, constituted by the Commission under rule 6 of the Rules of 2010, had also raised questions regarding the unconfirmed contradictory subjective assessment in the context of the reputation of one of the superseded judicial officers. The conclusions and the final decision of the Commission does not appear to be in conformity with the discussion recorded in the minutes of the meeting. The most crucial aspect relating to the legality and propriety of the proceedings stem from the opinions of two members of the Commission, both of whom were senior judges of this Court. One of them had raised the fundamental question regarding transparency, fairness and procedural propriety of the proceedings and decision making process of the Commission. The members had questioned the validity of the decision making process in the absence of predetermined objective criteria set out for selecting the candidates, followed by their evaluation by the Commission. It is implicit from the minutes that the entire process was undertaken by the Commission in the absence of any objective predetermined criteria. It is also obvious from a plain reading of the minutes that the Chief Justice of the High Court did acknowledge that one of the superseded judicial officers was eligible to be considered. In a nutshell, the minutes of the meeting clearly manifest that; the purpose for which the power has been conferred under Article 175A of the Constitution; there was no predetermined objective criteria for selection and evaluation of the candidates; the names were initiated by the Chief Justice of the High Court in consultation with the other judges; the power conferred under Article 175A was neither exercised in a transparent manner nor for the purpose for which it has been conferred there under; absence of predetermined and clear objective criteria had unquestionably rendered the entire decision making process non transparent; the subjective opinion of the Chief Justice of the High Court was given primacy by the Commission; the decision of the Commission had endorsed the supersession of four judicial officers, solely relying on the subjective opinion of the Chief Justice of the High Court; the members of the Commission had no opportunity to apply an independent mind as a collegium in the absence of the relevant record; the decision of the Commission in the absence of predetermined objective criteria suffered from lack of transparency and thus was not a valid exercise of power for the purpose contemplated under Article 175A of the Constitution. The High Court has relied on the judgments of this Court for granting the writ and, therefore, it would be appropriate to examine the principles enunciated therein. The Munir Bhatti1 case is the basic judgment relied upon.

5. Article 175A interpreted by this Court in the earlier judgments (a) Munir Bhatti's case The facts involved in the case were peculiar. The Chief Justices of two distinct High Courts had initiated the cases for consideration of the Commission relating to confirmation of serving Additional Judges. After deliberations, the Commission had unanimously nominated the judges to the Committee for extension in their tenure. The unanimously approved nominations were in conflict with the evaluation made by the Chief Justices of the respective High Courts which they had recorded in the 'Proforma for initiation of nomination for appointment as judge of the High Court' and on this ground the Committee refused to confirm the nominations. The decision was challenged before this Court by invoking its original jurisdiction under Article 184(3) of the Constitution. This Court held that the power to appoint a judge was in the nature of an executive function. The Commission and the Committee were forums created by the Constitution to function as two distinct entities related to the decision making process prescribed under Article 175A. This Court drew a distinction between the functions and limits of power conferred on the two forums. It was held that the opinion of the judicial consultee regarding suitability of a person had primacy and that such opinion was subjective and not open to judicial review. The judicial consultee was, therefore, held to be best suited to determine the calibre, competence, legal acumen and over all suitability of a person for appointment to a judicial post. On the other hand, the executive functions were more appropriate for evaluating the antecedents and, that too, on the basis of 'factual data and reasoning'. The Committee could not be seen as a superior forum sitting in appeal over the 'well considered' evaluation of suitability of a candidate made by the Commission while functioning as a 'collegium'. It was held that the Committee did not have the ability to reverse the 'well considered opinion' of the Commission. The process of making judicial appointments was to remain independent of the executive or legislature except for such executive inputs in decision making which would ensure and advance the independence of the judiciary. The decisions of the Committee were held to be justiciable and subject to judicial review. The collective decision making process mandated under Article 175A was spread over the members of the Commission who perform their functions as a 'collegium'. The process was meant to ensure greater degree of objectivity. The technical evaluation of a candidate's calibre was to be made by the Commission and, once evaluated, the recommendations are to be viewed as one. With the insertion of Article 175A, the special primacy earlier given to the opinion of one man, the Chief Justice, had been substituted by decisions collectively taken by a collegium. The evaluation of professional skill, legal acumen, quality and over all suitability of the nominee fell within the exclusive domain of the Commission and the Committee had no jurisdiction nor the ability to review or re-examine the decisions of the Commission taken collectively. The Committee could evaluate the antecedents on the basis of independent inputs in the decision making process which would advance and promote the independence of the judiciary. The determination of professional calibre, judicial skill, legal acumen and suitability once examined and a well considered opinion formed by the Commission was not open to re-examination or review by the Committee. The Committee was not part of the Majlis-e-Shoora (Parliament) and its members did not perform the functions entrusted to the parliamentarians. In order to properly appreciate how this Court has elaborated its interpretation of Article 175A it would be essential to examine the subsequent judgment while reviewing the Munir Bhatti case. (b) Review judgment in Munir Bhatti's case2 The Court has reiterated that under Article 175A of the Constitution the base of the decision making process had been substantially broadened. The Committee is empowered to exercise the powers which, under the earlier dispensation, were exercisable by the Prime Minister i.e the role which the Prime Minister and the President were performing in the earlier legal set up. The Committee could examine the antecedents of a nominee and form an opinion regarding his/her suitability for the judicial office. Such opinion must conform to standards which would pass judicial scrutiny because the decision is subject to judicial review. The functions of the Commission and the Committee may overlap and thus the role of the latter cannot be eliminated nor can it be made redundant. The Committee is required 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. The Committee cannot base its decision by picking up on an observation of one of the members of the Commission. The Committee has to perform its role in a meaningful way and with the application of mind which will withstand judicial scrutiny in accordance with recognized standards. The appointment of judges cannot be dealt with in a casual manner. In case the Committee subordinates itself to the opinion of one member of the Commission then it must give its own reasons which would withstand judicial scrutiny, otherwise the decision could be struck down as an unreasonable and arbitrary exercise of discretionary powers. The Court observed that the Committee does not have untrammelled power to choose to rely on the opinion of one member of the Commission and exclusion of opinions formed by others. The Committee fell in error by basing its decision on the views formed by one of the members prior to the matter having been considered and discussed in the Commission. In paragraph 25 of the judgment this Court has unequivocally recognized that eventualities could arise in the future distinct from the facts and circumstances involved in the Munir Bhatti case. This Court, therefore, made no attempt to provide for the possibilities of future eventualities and left it open for the purposes of judicial review. (c) Sindh High Court Bar Association case3 The facts involved in this case were similar to those in Munir Bhatti's case. The Commission, after detailed deliberation, had nominated six Additional Judges of the High Court for extension. The Committee had refused to accept the nominations of two Additional Judges on the basis of evaluations made by the Chief Justice of the High Court while initiating the names for consideration of the Commission. The Sindh High Court had allowed the petition on the touchstone of the principles and law enunciated in Munir Bhatti's case and the judgment was later upheld by this Court. (d) Is the Munir Bhatti case a binding precedent in all eventualities? As noted above, the facts and circumstances in the above discussed cases were similar. The judgments were in the context of extension, confirmation or non-confirmation of Additional Judges after they had served for a considerable period pursuant to having been appointed under Article 175A of the Constitution. The lis was not regarding fresh appointments. The relevant record of each judge was before the Commission and the evaluation was also made on its basis. The evaluation was found by this Court as being 'well considered'. The evaluation was found to have been made by the members functioning as a collegium and it was followed by forwarding the nominations to the Committee. The latter did not confirm some of the nominations on the sole ground that while initiating their cases for consideration of the Commission, the Chief Justices of the respective High Courts had recorded adverse opinions regarding their caliber and suitability. The Munir Bhatti judgment was, therefore, rendered specifically in the context of the aforementioned distinct and peculiar facts and eventualities. The ratio decidendi of Munir Bhatti's case was based on the satisfaction that the Commission, which consisted of law knowing persons who, after taking all the relevant matters into consideration, had evaluated each candidate. The evaluation was 'well considered' and it was undertaken by the members functioning as a collegium. It was not a case of evaluation having been made in the absence of the record, more particularly without the existence of predetermined objective criteria. In Munir Bhatti's case the Committee had solely based its decision on the opinion of the Chief Justices recorded in the 'proformas' sent to the Commission before its proceedings and, thus, primacy was given to their opinions over the evaluation collectively made by the Commission as a collegium. The decision in the circumstances was found by this Court to be flawed, illegal, arbitrary, in breach of procedural propriety and based on taking irrelevant matters into consideration. This Court had later explained in the review judgment that the Munir Bhatti case did not cover nor had it laid down a binding precedent for other distinct eventualities which could arise in the future. By no stretch of the imagination can the Munir Bhatti judgment be construed as having granted immunity to the proceedings or decisions of the Commission from being subjected to the scrutiny of the Committee, even if it has acted arbitrarily or in violation of the principles laid down by this Court for others to follow. If the judgment is interpreted otherwise then this Court will be declaring the power and proceedings of the Commission to be beyond the pale of accountability and judicial review. We would be declaring the decisions to be sacrosanct and shielded no matter how flawed they may be. The Committee would become redundant and bereft of the power to question the decisions of the Commission even when they are patently illegal, irrational and based on irrelevant consideration. Such an interpretation will make a forum involved in an executive function omnipotent merely because a majority of its members happen to be serving judges. In order to achieve this goal this Court will have to read into the Constitution something not intended by the framers of the Constitution; to give absolute, untrammelled and unfettered authority to a forum involved in an executive function. With humility and reverence, this was definitely not nor could have been the intent of the framers of the Constitution while inserting Article 175A. It is a deeply embedded principle in our jurisprudence that no power can be exercised in an unfettered or unbridled manned nor can it be immune from scrutiny. If Munir Bhatti's judgment is treated as giving a carte blanche, untrammelled and unfettered absolute power to the Commission, merely because its majority consists of the Chief Justices and judges, we will be negating the standards and principles by which the courts hold others to account. As will be discussed later, the procedure prescribed for the appointment of judges under Article 175A in the Constitution was a radical departure from the process that had existed for decades based on the principle of 'judges appointing the judges'. It is noted that, notwithstanding serving judges of the constitutional courts deliberating and taking decisions as members of the Commission, by no stretch of the imagination do they function or exercise powers of the respective courts. Rather, their status is that of persona designata and as members of the Commission they are involved in an executive function. There is no doubt that the role of the Committee as an oversight forum is exhaustive and the aforementioned judgments have not laid down a law or principles that would apply in all eventualities. The interpretation of Article 175A by this Court in the above discussed judgments is confined and explicitly in the context to the facts, circumstances and eventualities involved in those cases. It does not apply, nor are the judgments binding when the eventualities are distinct. The Munir Bhatti judgment is based on interpreting Article 175A in the context of independence of the judiciary. This Court has held that the process of appointment of a judge must remain independent of the executive and legislature except for such inputs in decision making which would 'ensure and advance the independence of the judiciary'. Before we proceed further and examine whether the decisions of the Commission as well as the Committee in the case in hand met the threshold of protecting and advancing the independence of the judiciary, it would be pertinent to understand its concept.

6. Independence of judiciary; its relevance in the context of the process of appointment of judges; Article 4 of the Constitution declares that it is the inalienable right of every citizen to enjoy the protection of the law and to be treated in accordance with the law. This right describes the essence of the rule of law, which is the premise for the existence of a stable, sustainable and just society governed under the framework of constitutional democracy. Judicial independence is the bedrock of the rule of law and a fundamental guarantee to every citizen that the latter will be dealt with accordingly. Judicial independence aims at ensuring and guaranteeing to each litigant access to an independent, impartial and competent court or a judge. Inappropriate influences or the appearance of being compromised and partial undermines and erodes the independence of justice. The concept is multifaceted and involves different aspects of judicial independence. It is not secured merely by insulating the judiciary from the other branches of the state i.e the executive and the legislature. There are other aspects, which are equally important if not more, such as inappropriate pressures and influences from within the judiciary and factors that operate and influence at the institutional level. The judiciary may be independent from the other political branches of the state on the touchstone of the trichotomy of powers, yet the individual judges may not be so because of lack of internal and institutional independence. The oath each judge has to take under the Constitution describes the essential characteristics of an independent judge. Every judge swears on oath to 'discharge duties and perform functions honestly, to the best of his/her abilities, faithfully in accordance with the Constitution and the law'; to abide by the code of conduct; not to allow personal interest to influence official conduct or official decisions; to protect and preserve the Constitution in all circumstances; to do right to all manner of people, according to law, without fear and favor, affection or ill-will. The basic principles of independence of the judiciary, endorsed by the General Assembly of the United Nations,4 are; to decide matters brought before a court impartially, on the basis of facts and in accordance with law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason'; the jurisdiction of the judiciary over all issues of judicial nature; no unwarranted or inappropriate interference with the judicial proceedings'. The 'Universal Charter of the Judge'5 explicitly declares that 'Judicial independence must be ensured by law creating and protecting judicial office that is genuinely and effectively independent from the other state powers. The judge, as a holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressures, and independently from other judges and the administration of the judiciary'. The Bangalore Principles of Judicial Conduct emphasize that it is not sufficient for a judge to be free from inappropriate connections and influence by the executive and legislative branches but 'must also appear to a reasonable observer to be free there from'. Article 1.4 further provides that a 'judge shall be independent of judicial colleagues in respect of decisions that the judge is obliged to make independently'. Article 9 of the Mount Scopus International Standards of Judicial Independence highlights the importance of the internal independence of the judiciary. The internal and institutional independence have been recognized as pivotal aspects of overall judicial independence. The concept of 'independence of judiciary' is not an end in itself nor a shield to protect the judges from being accountable. It also does not grant immunity against arbitrary actions or decisions of the judges. Independence of judiciary is essential because it ensures the ability of the courts and judges to serve the society and the litigants impartially and independently. It is not a privilege nor a prerogative of a judge to serve the society and the litigants but a solemn duty. The aspects of Internal and institutional independence are of paramount importance because they ensure the liberty of a judge to perform duties without undue influence and interference from within the judiciary i.e. from fellow judges or on account of operational and supervisory administrative powers relating to the governance of the court system. The undue interference, influence and pressures from within the judiciary could have more profound, subtle and insidious effect vis-a-vis the judicial independence. The organizational structure, nature of administrative and supervisory powers, professional values, hierarchy, mindsets, ethos, deeply ingrained institutional culture, exercise of powers regarding the mode and procedure of appointments, terms and conditions of tenure, conduct and manner of accountability are factors that have consequences for the internal and institutional independence of the judiciary. The concentration of unstructured and unfettered discretionary administrative powers in one office in the context of the governance of court systems or in decision making process relating to appointment of judges undermines the internal and institutional independence. As an illustration, the unfettered power of the Chief Justice to identify eligible persons in the absence of an objective predetermined criteria by no stretch of the imagination promotes or advances independence of judiciary. These crucial aspects of judicial independence have not received attention since the focus of the jurisprudence of this Court has remained on securing independence from the executive and the legislature. The internal and institutional independence is pivotal in relation to appointment of judicial officers. R Transparency, accountability and effective checks and balances in relation to the judicial appointments are foundational principles in order to ensure internal and institutional independence. The existence of the aforementioned factors reinforces public confidence in the appointment process and guarantees that each appointment shall be made on merit i.e. on the basis of identifying, selecting and ultimately appointing the best and worthy from amongst the eligible persons. Transparency in the process of judicial appointments is the most critical and overarching principle for achieving the goal of independence of judiciary. It must permeate at each stage of the appointment process. Public confidence is enhanced and, consequently, judicial independence is promoted and guaranteed by adopting predictable and transparent processes. On the other hand, secrecy, arbitrary decisions, subjective opinions, unstructured exercise of discretion and lack of checks and balances erodes independence of judiciary. The onerous task of appointing a judge on merit can only be achieved by ensuring that the entire process, from identifying the eligible persons to the final decision of appointment, is based on the principle of transparency. Each appointment should not only be made on merit but it must be seen by a reasonable observer to have been made so. The predictability of the decision making process is the test of transparency and its pre-condition is the existence of an objective predetermined criteria; a clearly defined criteria notified to the public in advance. The objective criteria must apply and extend to each stage of the process i.e. identification of eligible persons, selection, evaluation and then followed by appointment. Judicial appointments sans a transparent process at any stage erodes confidence of the people and enables decision makers to make appointments for extraneous and inappropriate purposes. Even if the appointment has been made on merit, lack of transparency will still not exclude legitimate doubts being raised by a reasonable observer. In a nutshell, transparency entails clear predetermined objective criteria that has been placed in the public realm in advance, absence of concentration of powers and taking decisions on the basis of subjective discretionary choices, an effective system of checks and balances that makes all those involved in the process to be accountable for their decisions. R The independence from other branches of the state, therefore, is not sufficient to secure and advance the independence of judiciary unless the other aspects i.e. the internal and institutional independence have also been ensured. The unaccountable self-governance system and exercise of unfettered powers exercised by individual judges in relation to the process of appointment of judges has a chilling effect on the internal independence. The pressures could be latent in nature. A deeply entrenched institutional culture that does not value independent judges enables the power wielding judicial hierarchy to flout merit if the process is not transparent. In such an eventuality the system loses its capability to ensure that the judges are appointed on merit i.e the best amongst the eligible persons. The independence of judiciary, therefore, can only be secured, advanced and protected when the process of appointment of judges at each stage is so transparent and free from unfettered discretionary powers exercised by individuals that each appointment is seen by a reasonable observer without a legitimate doubt to have been made on merit. The next question that needs to be examined is whether the traditional model of appointment of judges prior to the insertion of Article 175A had failed to secure independence of judiciary and why a need was felt by the chosen representatives to prescribe the revision of the process through a constitutional amendment.

7. The mode of appointment before insertion of Article 175A; 'Judges appointing Judges'; Did it secure and safeguard independence of judiciary. What 'mischief' was intended to be removed? The mode of appointment of judges prior to insertion of Article 175A was based on the control and self-governance by the judiciary or, more particularly, the judicial consultee. The powers were exclusively concentrated in the office of the Chief Justice, whether of the High Court or this Court, as the case may be. As will be discussed later, the executive seemed to have a significant role in appointment of judges during the validated authoritarian regimes. As an illustration, appointment of judges of the High Court during the legitimized rule of Field Marshal Mohammad Ayub Khan was subject to the latter's satisfaction attained pursuant to interviewing the candidates. There is no jurisprudence of this Court that would reflect friction between the judicial consultees and the validated authoritarian regimes over appointment of judges of constitutional courts. There is also no jurisprudence to suggest that the judicial branch during such periods may have had legitimate apprehensions regarding erosion or undermining of the independence of the judiciary because of the significant role of the validated authoritarian executive. The jurisprudence regarding safeguarding the powers of the judicial consultee, the Chief Justice, on the premise of independence of judiciary relate to frictions over the mode of appointments with the democratically elected executive. The cases of Al Jihad6 and Malik Asad7 virtually made the role of the executive ineffective. The powers were exclusively concentrated in the Chief Justice, as judicial consultee and the latter's subjective opinion was held to be unquestionably binding. The mode of appointment was, therefore, exclusively dominated by the judicial consultee and, therefore, it was reasonable to assume that 'judges appointed judges'. This model was followed and practiced since the emergence of Pakistan as an independent state till the process was exhaustively revised through a constitutional amendment. The reasoning of this Court in the Al Jihad and Malik Asad cases is based on the principle of securing independence of the judiciary. In reality, was the goal achieved? Did the model, which was based on the concept of 'judges appointing judges', ensure independence in all its facets; external, internal, institutional and individual independence of a judge? Were the chosen representatives justified in revising the process through an amendment in the Constitution? Was there a legitimate need for revising the process? Would it seem to a reasonable informed observer that the mode of appointment of judges prior to the insertion of Article 175A had secured the independence of the judiciary? The answers to these crucial questions are rooted in our constitutional history. At the time when Pakistan emerged as an independent sovereign state it was governed under the Government of India Act, 1935. On August 11, 1947 the President of the first Constituent Assembly, Quaid-e-Azam Muhammad Ali Jinnah, addressed the chosen representatives from the two wings of the country, East and West, and emphasized to them the onerous task of framing the future constitution. He had explicitly referred to the Constituent Assembly as a 'full and complete sovereign body' which was to function as the Federal Legislature of the newly emerged independent state. The unelected bureaucracy led by the Governor General struck the first fatal blow to the future constitutionalism of the independent state by dismissing the Constituent Assembly and depriving the people of their fundamental right to choose how they were to be governed. Maulvi Tamizuddin Khan, the Speaker of the 'sovereign body,' challenged its dissolution and the Sindh Chief Court declared the act to be illegal

8. The judgment was challenged and the predecessor of this Court, the Federal Court, upheld the dissolution by contriving the 'doctrine of necessity' which would later become imbedded in our jurisprudence

9. It changed the future course of constitutional pursuit and enabled usurpers to rule the people under authoritarian regimes for prolonged spells. The validation of the first martial law by this Court in the Dosso case10 paved the way for establishing the undemocratic rule of Field Marshall Muhammad Ayub Khan followed by General Mohammad Yahya Khan. Together they ruled the country from 1958 to 1971. General Mohammad Zia ul Haq could not have governed the country from 1977 till 1988 nor abrogate the Constitution without the collaboration of the judiciary. The act of high treason was validated by this Court through the Begum Nusrat Bhutto judgment.11 The deposed elected Prime Minister was sent to the gallows and questions were later raised regarding the impartiality and independence of the judiciary, so much so, that a judge on the Bench of this Court had also publically supported the perception. Syed Zafar Ali Shah's verdict12 by this Court enabled yet another usurper, General Pervaiz Musharraf, to abrogate/subvert the Constitution and govern the country in military uniform from 1999 to 2008. The governance of the country under the authoritarian and oppressive regimes, pursuant to the abrogation or subversion of the Constitution for most of its history would not have been possible without the collaboration of the judiciary, particularly this Court. Despite being a creation of the Constitution, this Court had repeatedly validated acts of high treason and had allowed the legitimized usurpers to tamper with its provisions. The dissolution of the Majlis-e-Shoora (Parliament) by the President under Article 58(2)(b), rather than being resisted was endorsed by this Court. The chosen representatives fell prey to the mischief under Article 62(1)(f) and many were disqualified for life even for such trivial errors as omission to declare details of an expired identity card. Three elected Prime Ministers and scores of chosen representatives were disqualified. Barring a few, the judges of the superior courts willingly took fresh oaths, swearing allegiance to the legitimized usurpers despite having earlier sworn to defend, protect and preserve the Constitution. The chosen representatives were held guilty and sentenced under the law of contempt because of their speech but restrain was exercised against the powerful undemocratic forces even when the contemptuous acts were grave in nature. Judges of the superior courts were administered oath under the provisional constitutional order in violation of the restraining order, dated November 3, 2007, passed by a seven member bench followed by the illegal detention of scores of judges. No one was held to account even after the judiciary was restored. Extraordinary restraint was also displayed when the Area Commander of Multan, during the second martial law, had issued a notice to two serving judges of the Lahore High Court to show cause why proceedings should not be taken against them for 'contempt of Martial Law'

13. The few judges who showed courage by upholding their independence and rendering verdicts according to their conscience were subjected to being prosecuted by brother judges merely because the powerful forces were displeased with the judgments. The historic lawyers' movement of 2007 had aimed at ensuring that the Constitution was upheld and supremacy of Majlis-e-Shoora (Parliament) was respected. The judicial activism' and jurisprudence developed after the restoration of the judges does not appear to be consistent with the stated aims of the movement. Some of the jurisprudence of this Court may also give the appearance of being inconsistent with democratic values e.g. observations supporting Article 58(2)(b)14 or relating to the parliamentary form of government.15 The jurisprudential history of this Court and its role in upholding and defending the Constitution or the democratic representative institutions of the people has definitely not been flattering. The validation of so many episodes of unconstitutional adventurism, giving legitimacy to acts of high treason, granting immunity against desecration of the sanctity of supremacy of institutions representative of the people, sending an elected Prime Minister to the gallows, disqualification of three other Prime Ministers and scores of other representatives of the people by a few unelected judges cannot be erased from the law books. No usurper nor a collaborator has ever been held accountable for committing the gravest offence of high treason. All this happened during seven decades when judges had the exclusive power to appoint judges. A reasonable informed observer would be justified in not having confidence in such a mode of appointment of judges. It would also be justified if it seems to the reasonable observer that the judiciary has not remained independent and impartial when judges were appointed by judges. The exclusive stakeholders of the judicial branch of the state, the litigant in particular and the society in general, have undoubtedly suffered irreparably. The litigants and the society becomes voiceless when the authority and sanctity of their representative forums is allowed to be undermined and desecrated. The independence of judiciary was never secured, rather it was undermined when judges were appointing judges and a reasonable observer will be justified if the judicial branch seems to the latter as an adversary of the representative forums, rather than its defender and protector. The role of the judiciary in its historical context is sufficient to justify lack of public confidence in its independence and impartiality. It is obvious that it was this mischief which the representatives of the people, particularly the litigants, had aimed to do away with by revising the process of appointment of judges through the insertion of Article 175A in the Constitution. The mode of appointment, exclusively controlled and regulated by the judges, particularly by the Chief Justice, had eroded the independence of the judiciary as has been evident from its historical role. What process of appointment was prescribed and intended by the framers of the Constitution through the insertion of Article 175A?

8. Article 175A - Duty to appoint each judge on merit The Majlis-e-Shoora (Parliament), pursuant to undertaking an extensive exercise and deliberations, passed the Eighteenth Amendment. It introduced exhaustive constitutional reforms and the insertion of Article 175A was one of the fundamental changes regarding the process of appointment of judges in the High Courts and the Supreme Court. The vires of the amendments was challenged and the petitions were entertained by this Court. However, to the extent of Article 175A, this Court, vide its order passed in Nadeem Ahmed's case16, referred the matter to the Majlis-e-Shoora (Parliament) with advice, suggesting further amendments. The Majlis-e-Shoora (Parliament) further amended Article 175A in the light of the advice of this Court through the 19th Amendment. The revised procedure was based on proceedings before two independent forums specifically created by the Constitution, the Commission and the Committee. The Commission The Commission is chaired by the Chief Justice of Pakistan and includes senior serving and retired judges, representatives of the executive i.e the Federal or Provincial Ministers for Law, as the case may be, the Attorney General for Pakistan and representatives of the Pakistan Bar Council or respective Bar Councils. The majority of members of the Commission consist of serving and retired judges. Article 175A (8) explicitly provides that the Commission, by a majority of its total membership 'shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be'. The language is unambiguous and describes the terms of the power which authorizes the Commission to make a nomination and also the purpose or object for which the power has been conferred. It is not a power that grants a discretion to choose between alternatives. The power clearly does not imply giving a discretion because the Commission can only adopt one lawful course; to nominate to the Committee one person for each vacancy. The decision of the Commission, therefore, is a constitutional duty. It is implicit in the language of Article 175A(8) that the Commission has to perform two fundamental duties. First, make a nomination against each vacancy; second to perform this duty as soon as the vacancy occurs. The performance of the latter duty has to be prompt. Does the Commission enjoy the liberty or prerogative to make any nomination as it may deem appropriate. The answer is an emphatic 'no'. It is implicit in the duty to make the nomination on merit; the best and worthy amongst the eligible. This onerous duty is owed by the Commission to the society in general and the litigants in particular. In order to achieve the object for which the power has been conferred it becomes a duty of the Commission to ensure transparency in its proceedings and the decision making process to reinforce public confidence. The principles relating to transparency have already been discussed. It, therefore, is a duty of the Commission to identify, evaluate and ultimately nominate for each vacancy in accordance with an objective predetermined criteria. The terms of the power that authorizes the Commission to make the nomination for each vacancy implies that it will conduct its proceedings as a collegium, rather being influenced by the subjective opinion of one of the members. The decisions and nominations must be based on relevant considerations and for the objective for which the power has been conferred. The Commission, despite the presence of serving or retired judges, performs an executive function; appointment of judges and its proceedings are therefore not immune from the power of oversight conferred on the Committee. There is no reason why the grounds that renders a decision void and unenforceable e.g illegality, irrationality, procedural impropriety or taking irrelevant matters into consideration, will not apply and be attracted in the case of the proceedings and decisions of the Commission. The Commission involved in the performance of a duty as an executive feat is definitely not above the law nor immune from oversight scrutiny of the Committee. It will be a breach of the terms of the power conferred on the Commission to make a nomination otherwise than on merit. As a corollary, lack of transparency will render the proceedings and nomination as illegal and flawed. It is noted that, pursuant to powers conferred under Article 175A(4), the Commission has made the Rules of 2010 to regulate its procedure. Rule 3 confer powers on the Chief Justices, as the case may be, to initiate nominations in the Commission. The Commission has not prescribed an objective criteria in this regard. The initiation of nominations relates to identifying eligible persons to be considered by the Commission. This is the most crucial stage because it deprives the Commission of exercising its inherent duty of identification of the eligible candidates. Rule 3 creates a bottleneck by allowing the Chief Justices to regulate the entire process and that too in the absence of predetermined objective criteria. The Commission contravenes the terms of its powers and fails in pursuing the objective for which they have been conferred. Rule 3, therefore, is ultra vires Article 175A of the Constitution. Notwithstanding Rule 3, powers conferred under Article 75A to nominate also includes the power to identify the eligible persons and such duty has to be performed by the Commission functioning as a collegium. The Committee The Committee is the second forum involved in the executive function; the appointment of a judge. Its composition is unique because of its representative character. It consists of eight members, four each from the two Houses of the Majlis-e-Shoora (Parliament), the National Assembly and Senate, respectively. Four members are nominated by the Leader of the House and four by the Leader of the Opposition. It is manifest from the composition and nominations that the Committee virtually represents the entire Majlis-e-Shoora (Parliament). The unique representative character of the Committee has a symbolic significance; representing the voice and aspirations of the actual stakeholders of the judicial system, the litigant and the society. Article 175A (12) describes the terms of power conferred on the Committee as well as the objective thereof; 'The Committee on receipt of a nomination may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed'. The first proviso empowers the Committee not to confirm the nomination by a three fourth majority and by recording reasons. The third proviso further provides that the Commission shall send another nomination if a nomination has not been confirmed. The terms of the power which authorizes the Committee to either confirm or not to confirm a nomination received from the Commission is a continuation of performance of the duty to nominate and confirm an appointment on merit; the best and worthy amongst the eligible. The scheme of the revised process and the significance of the role of the Committee has been aptly described by a full bench of this Court in the Nadeem Ahmed case in these words; 'Only the appointment process has been changed and the avowed objective seems to be to strike a balance between judicial independence and democratic accountability/parliamentary oversight'. The Committee, therefore, performs the duty of democratic accountability or, in other words, oversight. It forms part of the performance of a duty of paramount public importance; appointing each judge on merit. It is, therefore, a duty, not a discretion, of the Committee to ensure that the Commission has not breached or exceeded the terms of its power and has performed the duty for the objective for which it has been conferred. The Committee will be within its powers if it does not confirm a nomination if it finds that the Commission had breached or failed to perform its public duty i.e to nominate on the basis of merit; the best and most worthy amongst the eligible. As already discussed above, the Committee cannot sit in appeal or review the 'well considered evaluation' relating to caliber, competence, legal acumen and over all suitability of a nominee as has been held in Munir Bhatti's case. In that case the well-considered nomination, having been made after considering all the eligible persons, was not in doubt. The Committee had relied on the opinion of only one of the members and, that too, prior to commencement of the Commission's proceedings. Moreover, it related to the evaluation of Additional Judges and did not involve fresh appointments. The Committee will be within its terms of powers if it does not confirm a nomination made by the Commission in contravention of or in excess of the terms of powers or when it performs its duty for an objective other than for which the power has been conferred, or it has failed to perform the duty of paramount public importance. The terms of powers that authorizes the Commission to nominate for each vacancy does not give it an option to adopt any course other than making a nomination on merit. A nomination made without complying with the principles of transparency, particularly in the absence of predetermined objective criteria will vitiate the decision because the Commission, in such an eventuality, would have contravened the terms of powers and thus failed in performing its duty under Article 175A of the Constitution. Commission and Committee are not adversaries The Committee and Commission are forums created by the Constitution to perform a public duty; to appoint each judge on merit. They are not adversaries and no one is superior to the other. Both have been created to perform a duty of paramount public importance that have consequences for every citizen and their rights and freedoms. This duty can only be performed in accordance with the intent of the framers of the Constitution and mutual respect by both forums for each other. The objective for which the power has been conferred on the Commission is to identify, evaluate and then decide to make a nomination for each vacancy on merit. The public confidence cannot be reposed in the Commission merely because of its composition, rather it depends on the transparency and credibility of its proceedings. The Committee is worthy of respect because of its unique representative character. Its role as a forum of democratic accountability and oversight is because it represents the stakeholders of the judicial organ of the state; the society and the litigant.

9. CONCLUSION The proceedings of the Commission, duly recorded in the minutes of the meeting have been discussed above. The majority of members of the Commission are serving and retired judges. The Commission performs its constitutional duty in relation to the appointment of judges which essentially is an executive function. Judges hold exalted positions and they are expected to display exemplary conduct while perfuming their duties. They lay down principles of fairness and conduct for others to follow as benchmarks for judging the legitimacy and legality of proceedings or taking decisions in conformity with powers conferred under the law. In Tariq Aziz ud Din's case17 this Court had set aside the promotions made by the executive because it was concluded that eligible candidates had been ignored and thus the selection was not made on merit. In Orya Maqbool's case,18 promotions to a higher grade were found to have been made illegally because the objective criteria lacked transparency. In Dr. Muhammad Arif''s case19 the promotions were annulled because evaluation of integrity had been made on the basis of personal knowledge and opinions of the members of the Board. Should the same principles not apply in the case of the Commission merely because the majority of its members happen to be serving or retired judges? Not only should the principles apply, they should be applied more rigorously to forums consisting of serving judges than in the case of others. The proceedings of a forum consisting of judges should be so transparent and conducted in such a manner that no one has an opportunity to raise doubts regarding the legality of the decisions or procedural propriety. The minutes of the meeting have been discussed above, and undoubtedly they cannot withstand judicial scrutiny in accordance with the recognized standards. They definitely do not conform to standards that would pass judicial scrutiny. Admittedly, the entire process lacked transparency. There was no objective predetermined criteria to identify the eligible judicial officers. The personal opinion of the Chief Justice regarding integrity of one of the superseded judicial officers was accepted and no credible information could be placed on record. The reputational damage caused to the judicial officer in the absence of any material in support of the allegations was not justified. The Chief Justice had conceded that one of the superseded judicial officer was suitable to be considered and he had agreed not to fill one vacancy. However, on the ground of 'backlog' in the High Court, an eligible judicial officer was ignored, rather superseded though his competence and integrity was not doubted. The decision was irrational and based on irrelevant consideration. The other three judicial officers were also eligible to be considered but their record was not sent nor placed before the Commission because in the opinion of the Chief Justice they were not suitable. There were serious allegations against the three judicial officers but yet they were serving as District Judges. If they were suitable to perform their duties as adjudicators in the District judiciary then why were they disqualified from being considered to be appointed as judges of the High Court? Are the functions and responsibilities of judges of the District Courts inferior to those of the judges of the High Court? The Commission had relied on the subjective opinion of the Chief Justice and had thus endorsed the allegations against the three judicial officers. The judicial officers were condemned unheard but should they have been allowed to continue to serve as District Judges? These questions have arisen because the proceedings of the Commission were not in conformity with the standards that would pass judicial scrutiny. The Commission, by giving primacy to the opinion formed by the Chief Justice prior to the commencement of the proceedings, had violated the principle laid down in Munir Bhatti's case. The Commission had failed to perform its duty and the terms of power conferred under Article 175A were breached. The power to nominate was also not exercised for achieving the objective for which the power has been conferred. In the absence of predetermined objective criteria and lack of transparency the nominations could not have been made on merit. The bottleneck created by the Chief Justice at the stage of identification of the eligible persons had prevented the Commission from performing its duty in accordance with the terms of its powers under Article 175A. If all the eligible persons had been considered by the Commission on the basis of the relevant record a legitimate doubt would not have arisen even if the nominations had been the same. On the touchstone of the principles discussed above, the Committee was justified and had acted within the powers authorizing it under Article 175A not to confirm the nomination. All that the Committee had done was to highlight the illegality of the nomination and contravention of the terms of powers conferred on the Commission under Article 175A. The eventualities were distinct and explicitly distinguishable from the one involved in Munir Bhatti's case. The Commission had failed in its duty to make the nominations on the basis of merit and on the touchstone of the principles discussed above. The High Court, while passing the impugned judgment, has not appreciated that the eventualities were distinct and did not attract the law laid down in the Munir Bhatti case. The Additional Attorney General has rightly pointed out that the time has come to revisit the jurisprudence laid down in the Munir Bhatti case. The judgment is binding on this Bench but with profound respect and reverence it seems that proper assistance was not extended. This Court ought to recognize the unique representative character of the Parliamentary Committee and its role as a forum created for democratic accountability and oversight. It represents the litigants and the people, who are the sole stakeholders of the judicial organ of the state. It is their interest that is of paramount importance because they suffer when an appointment is not made on merit. The forgoing are the reasons for the short order whereby leave was granted and the petitions were converted into appeals and allowed by setting aside the impugned judgment of the High Court. The short order is reproduced as follows: "For detailed reasons to be recorded later, these matters are disposed of in the following manner: 1) C.Ps. Nos.2314, 2317 and 2318/2022: By majority of two to one (Mr. Justice Athar Minallah dissenting) are dismissed. Leave to appeal is refused. 2) C.M.As. Nos. 863-P, 866-P and 869-P/2022: are unanimously held not to be maintainable and dismissed." Sd/- Judge MWA/F-17/SC Order accordingly. 1 Munir Hussain Bhatti and others v. Federation of Pakistan and another (PLD 2011 SC 407) 2 Federation of Pakistan v. Munir Hussain Bhatti and others (PLD 2011 SC 752) 3 Federation of Pakistan v. Sindh High Court Bar Association (PLD 2012 SC 1067) 4 Basic Principles on the independence of the judiciary - endorsed by the General Assembly Resolution 40/32 of 29th November 1985 and 40/146 of 13th December 1985. 5 "The Universal Charter of the Judges" approved by the members associates association of the International Association of Judges. 6 Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) 7 Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) 8 Maulvi Tamizuddin Khan v. Federation of Pakistan and others (PLD 1955 Sindh 96) 9 Federation of Pakistan v. Maulvi Tamizuddin Khan (PLD 1955 FC 240) 10 The State v. DOSSO (PLD 1958 SC 533) 11 Begum Nusrat Bhutto v. Chief of Army Staff and others (PLD 1977 SC 657) 12 Zafar Ali Shah v. Federation of Pakistan and others (PLD 2000 SC 869) 13 Page 340 Memoirs and Reflections, Justice Nasim Hasan Shah) 14 Watan Party v. Chief Executive/President of Pakistan and others (PLD 2003 SC 74) 15 Pakistan Lawyers Forum v. Federation of Pakistan and others (PLD 2005 SC 719) 16 Nadeem Ahmed and others v. Federation of Pakistan and others (PLD 2010 SC 1165) 17 Tariq Aziz-ud-Din (2010 SCMR 1301) 18 Orya Maqbool Abbasi v. Federation of Pakistan and others (2014 SCMR 817) 19 Federation of Pakistan and others v. Dr. Muhammad Arif and others (2017 SCMR 969)