P L D 2011 Supreme Court 752 (PLP)

JAWWAD S. KHAWAJA, J.

We have heard these petitions at length and find no grounds to review of our judgment whereby Constitutional Petitions Nos. 10 of 2011 and 18 of 2011 were allowed. We would, however, like to take this opportunity to address the arguments advanced by the learned Additional Attorney General, Mr.K.K. Agha, in support of these Review Petitions. To facilitate this task we have, for convenience, dealt with the submissions of Mr. Agha under distinct headings. JUDICIAL REVIEW

2. Mr. K. K. Agha agreed that our Constitution was based on a system of checks and balances as set out in the judgment under review. He also agreed, therefore, that the Committee created under Article 175A of the Constitution had to have some checks on it consistent with the Constitutional scheme. He gracefully acknowledged in the context, that review of the decisions of the Committee by the Court would provide such check and will create the requisite balance. He had some hesitation making this submission, but only on the score that while arguing the Constitutional Petitions challenging the 18th Amendment before a seventeen-Member Bench of the Court, he had adopted the plea that judicial review in those petitions was barred. He felt that accepting this Court's power of judicial review in these cases would be inconsistent with his argument advanced before the seventeen-Member Bench challenging the Court's power of judicial review in the said petitions.

3. This is an unfounded concern. The challenge to the Court's power of judicial review in the petitions being heard by the seventeen-Member Bench is based on the premise that a Constitutional amendment properly passed by Parliament under Article 239 of the Constitution, cannot be judicially reviewed. Needless to say this aspect of the petitions before the said Bench will be addressed in the petitions being heard by it. The present cases, we repeat, assume the validity of the 18th and 19th amendments. Judicial review in these cases relates to decisions which have been made by the Parliamentary Committee purporting to be decisions under Article 175A of the Constitution. No challenge has been presented by the petitioners to the Article itself. This distinction between judicial review of a constitutional amendment and judicial review of an act purported to have been done under the Constitution should provide reassurance to Mr. Agha that by acknowledging the Court's power of judicial review in these cases, he is not being inconsistent with his argument before the seventeen-Member Bench. THE COMMITTEE AS AN INDEPENDENT CONSTITUTIONAL BODY

4. We can now take up the submissions of Mr. Agha in relation to our finding that the Committee cannot be equated with Parliament nor can it be treated as a sub-set of Parliament in the manner in which a Parliamentary Committee elected and answerable to Parliament can be considered to be part of Parliament. There is ambivalence in the thinking of the Federation. This seems to be a result of the appellation of 'Parliamentary Committee' used in Article 175A and discussed in the judgment under review. The mistaken notion apparently has resulted from ignoring the wisdom of the Master al-Ghazzali of old and the contemporary thinker S. Idries Shah that the container or outward label is not and must not be confused with the content if we are to avoid the pitfalls of superficiality and muddled thinking. The Bard revered by the English spoke in similar vein a few hundred years after al-Ghazzali. With a slight twist to his words we can say, that the gainda, a beautiful flower in itself, will not become a rose or acquire its attributes and smell as sweet, if called a rose. Thus, while it may be possible for a layman or an uninformed commentator to be misled by an outward label, as Judges we would fall into serious error if we were to be inveigled by a title alone. In the judgment under review we have given reasons for our view that the Committee's name is irrelevant; it is independent of Parliament and cannot be considered its part or be accorded the same status as Parliament. No reason has been given by the learned Additional Attorney General which can persuade as to depart from this opinion.

5. In this regard, it is also worth noting that Mr. K. K. Agha's argument was that though Article 175A, as originally framed in the 18th Amendment, created a misleading impression that the Committee is an independent body, the changes brought about in Article 175A by the 19th Amendment, had the effect of clarifying that the Committee was meant to be part of Parliament. This submission is disingenuous and is also in conflict with the Federation's own stance as will be shown shortly. When Mr. Agha was specifically asked to refer to such changes which, according to him, addressed the lacuna overlooked in the original Article 175A, he drew our attention to clause (16) thereof. This provision reads as under:- "175A ... (16) The provisions of Article 68 shall not apply to the proceedings of the Committee" Despite our best efforts, we must admit, we have been unable to understand how the above clause can counter the reasoning in our judgment or how this provision can be taken to mean that the Committee is a body elected by Parliament or is accountable to it or is part of it.

6. However, since the learned Additional Attorney General did make an attempt to argue this point, it will be appropriate to advert to some extracts from the review petition itself which, in our view, correctly state the constitutional status of the Committee and go against the position now canvassed before us. The Federation, in any event, cannot be allowed to argue against its own pleadings. Here it may, be noted that the review petitions were filed much after the passing of the 19th Amendment and were also submitted subsequent to the judgment under review. The Federation has averred therein that "this new system of judicial appointments envisaged two new independent constitutional bodies being a part of the process" of judicial appointments. As specifically pleaded in paragraphs 2 and 3 of the review petitions, the first independent constitutional body was the Commission while the "other independent constitutional body was the Parliamentary Committee" comprised under Article 175A(9) of the Constitution. It is quite obvious from these categorical averments in the review petitions, that the Parliamentary Committee is acknowledged even by the Federation, as an "independent constitutional body". It should also be self-evident that a Constitutional body which is independent in this way cannot at the same time be part of Parliament.

7. There is also ambivalence on the part of the Federation in respect of the nature of the Committee and its place in the constitutional order. In this regard we can refer to the synopsis of oral submissions which has kindly been supplied to us in these cases, by the learned Additional Attorney General. These submissions were made by him before the seventeen-Member Bench hearing the petitions challenging the 18th Amendment. While defining the status of the Committee the position taken by the Federation was that it is a 'constitutional Committee, distinct from an ordinary Parliamentary Committee established under the Parliamentary Rules of Business, the special Constitutional Committee is not subject to the same rules as a Parliamentary Committee and instead is subject to its own rules, which it is entitled to make for itself under Article 175A'. This position was re-emphasized by the submission that "the Parliamentary Committee is generally a stage in the legislative process whereas (the Committee] under Article 175A is not concerned with Parliament's legislative process. It is a distinct Committee dealing with a distinct area of the Constitution namely the appointment of superior Court Judges".

8. Clearly, therefore, it is impossible, for the aforesaid reasons, to see the Committee as being part of Parliament or to accord to it equivalence with Parliament. RULE RELATING TO PRECEDENT

9. We may now address the Federation's contention that our judgment, by virtue of Article 189, will have the effect of rendering the Committee redundant, for all future cases. While the respective domains/roles of the Committee and the Commission will be addressed in a later part of this opinion, for the present we can briefly deal with the fundamental rule relating to the use of precedent in a common law jurisdiction such as ours, as this will show that the Federation's argument is misconceived. The rule which infuses discipline in the working of a common law Court and which we have scrupulously adhered to, can be seen from our judgment and in particular paragraph 74 of the concurring opinion where we have consciously avoided giving 'overly broad and sweeping statements on Article 175 as amended' and have, with full awareness of the nature and effect of precedent, noted that our 'job here is to determine the fate of [these] petitions before us. And the outcome of these petitions is determined, ultimately, by their own facts and circumstances'. This fundamental principle of legal reasoning in common law jurisdictions, with which students are familiarised in law school, is often overlooked by lawyers and Judges, to the peril of incremental and organic growth of the law. It is in this jurisprudential context that certain paragraphs in the judgment under review, cited by Mr. K. K. Agha in support of his argument and considered later, have to be examined.

10. Mr. Agha rightly referred to Article 189 of the Constitution as providing constitutional recognition of the common law principle of binding precedent. It will be seen that a decision of the Supreme Court under the said Article "shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding ..." Mr. K. K. Agha's reading of the judgment under review based on his understanding of Article 189 ibid, and his conclusion that the Committee has been rendered redundant, is not in accord with settled principles applicable to precedent. The error in his reasoning can easily be illustrated by adverting to the circumstances of the present case.

11. Firstly, it is through reliance on precedent that we have accepted as "a principle of law" that the Constitution has to be read as an organic whole and that its Articles and separate clauses cannot be seen in decontextualised isolation. There appears to be no dispute on this as Mr. Agha himself became a forceful votary of this legal principle despite his earlier objection against judicial review of the decisions of the Committee, based on the insular reading of Article 175A alone. Then, inter alia, by applying the said principle of law to Article 175A, we have enunciated a new principle of law, which is that the decisions of the Committee are subject to judicial review. This can rightly be termed a principle of law enunciated by us in terms of Article 189 of the Constitution. While doing so we have carefully remained within the ambit which constrains a Court when laying down precedent. The learned Additional Attorney General, as noted earlier, has also now acknowledged the Court's power to review the decisions of the Committee. By virtue of Article 189 this new principle will remain the law until it is revisited. Yet another 'principle of law' which has been enunciated in the judgment under review is the delineation of the respective roles of the Commission and the Committee under Article 175A. It is here that the Federation appears to have fallen in error. The principle that the Commission and the Committee have defined roles is precedent. Whether the Committee has performed its role or has remained within its domain while making the impugned decisions in the circumstances of these cases is not precedent except to the extent a future case may arise which is indistinguishable on facts, from these cases.

12. The misconception in Mr. Agha's reasoning arises when the factual determination, based on the specific circumstances of this case, is treated as a principle of law in terms of Article 189 ibid. He reads our judgment as enunciating a principle of law which renders the Committee redundant. No such legal principle, we say with respect to Mr. Agha, has been enunciated by us, as is clear from the extract of the judgment under review reproduced above and from a number of other passages in the said judgment which highlight the factual aspects of this case. Whatever is peculiar and specific to the facts and circumstances of this case, by definition cannot be a principle of law enunciated by us.

13. What has been stated in this section of our opinion is neither original nor is it a product of any creative exercise on our part. These principles can be found in any textbook on precedent and legal reasoning in a common law jurisdiction. The dynamic of the judicial process which drives evolution of the law based on precedent appears to have been overlooked in the Federation's submissions before us. DOMAIN OF THE COMMITTEE - REDUNDANCY

14. The above discussion should to a large degree address the arguments of the Federation. But, considering the importance, of this case, we may take this opportunity to directly deal with the Federation's stance that through the judgment under review, the Committee had been made redundant. This argument is not correct as it ignores important parts of the judgment and also appears to be based upon a misconception as to the nature and effect of precedent as explained above. The learned Additional Attorney General adverted to paragraphs 21, 22 and 32 of the lead judgment and paragraphs 55 and 56 of the concurring opinion to support his argument. According to him when these parts of the judgment under review are examined together the conclusion is that no meaningful role has been left for the Committee and that it has been rendered redundant. I have gone through the cited paragraphs of the judgment and find the argument of the Federation to be without merit.

15. Let me say at once that the Committee has and can exercise the powers which under the earlier dispensation were exercisable by the Prime Minister. We have specifically held that "[t]he role which they [the Prime Minister and President] were performing in the previous legal set up ... is now logically to be performed by the Committee". Therefore, if the Prime Minister's role in the previous appointment mechanism was not considered to be meaningless, we fail to see how the Committee, charged with performing the same role, can be considered redundant. That the Committee is only an "institutionalized forum" for performing the functions which were previously the domain and province of the Prime Minister is made clear in our judgment more than once. This can be further buttressed if one considers the speeches of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th Amendment bill was being debated. On 6-4-2010, for instance, with the object of convincing the members of the National Assembly to approve Article 175A, Mr Rabbani said, "in actual fact what is happening is that the functions that were being performed by the Prime Minister in terms of the present [pre amendment] system of appointment of Judges would be taken over by this Parliamentary Committee". The very same intention was repeated six days later on the floor of the Senate on 12-4-2010 when Mr. Rabbani, with the same clarity of expression and intent stated that "what in actual fact has been done here [in Article 175A] is, that the role that was assigned to the Prime Minister in terms of appointment of Judges ... has now been assigned to this Parliamentary Committee".

16. It may be noted here that Mr. Raza Rabbani was not just any member of Parliament making any odd speech on the floor of the Houses of Parliament to put forward his own point of view. He was the Chairman of the PCCR. It was he who was steering the Constitutional amendments through Parliament. We can presume that within the PCCR, comprised of 27 members, there would have been discussion and divergent points of view on Article 175A before it was given the shape it finally took in the 18th Amendment. These divergent views were sorted out which resulted in the view expressed by Mr. Rabbani while explaining the function of the Committee. It has not been suggested and, in any event, there would be no warrant for the premise that the intent of Parliament was anything different from what was stated by Mr. Rabbani in Parliament, in the solemn proceedings effecting important provisions of the Constitution. It would, therefore, be reasonable to rely on Mr.Raza Rabbani, as providing evidence of Parliamentary intent. It is such intent after all, which we are engaged in ascertaining and in this effort we are immeasurably benefited by what Mr. Rabbani said. We have already commented on the relevance of Parliamentary proceedings as an aid to interpretation of statutory text. While considering the domain and functions of the Committee we should also note that Mr. Rabbani was unambiguous in informing Parliament that the members of the PCCR "were also mindful of the fact that the manner in which the trichotomy of power has been defined in that [Sindh High Court Bar Association] judgment, the balance of that should not be upset". Our judgment under review has ensured that this balance is maintained.

17. The above noted Parliamentary record provides the most clear and unequivocal explanation of what role the Committee was meant to perform. And since there was no debate on Article 175A in either House when Article 175A was passed without comment or amendment, we can take comfort in the fact that our interpretation of Article 175A matches the intention of Parliament as we have held in the judgment under review that, "Parliament intended to preserve the delineation of powers in the previous dispensation, but vest the role in more diffused bodies than was previously the case". If we have enunciated this general principle of law, it is difficult to see how it can be said we have rendered the Committee redundant.

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 emphasised 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 ...".

20. However, if the Committee, as in the present cases, does not engage in any exercise at all other than picking up an observation of one member of the Commission and chooses to base its decision on it without more, it will have fallen in error. 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 Federation nevertheless, wants us to hold that this verdict of the Committee is sacrosanct despite these shortcomings. To give such extraordinary precedence to the verdict of the Committee, based on nothing more than tentative observations (subsequently reconsidered) of one member of the Commission is not warranted. The appointment of Judges is too serious a matter to be dealt with in such casual fashion. The requirement of Article 175A is that the Committee shall give "its decision with reasons" in the event it does not confirm a nomination made by the Commission. Unfortunately, this has not been done. Instead the Committee's decision making function, entrusted to it by Article 175A, has in effect, been outsourced. It is the unquestioning subservience of the Committee to the observations of the Chief Justices of Punjab and Sindh, without examining the basis of such observations, which we have guarded against in our judgment under review. The reasons for this view have been stated in the judgment under review, but can now be further elaborated.

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 synthesised 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. The outcome of the Constitution Petitions decided by us is a result of these specific circumstances. It follows, therefore, that if the facts are different in any subsequent case the outcome of such case may also be different. This is precisely what we have said in para. 74 of the concurring opinion, which in relevant part is reproduced as under:-- "74. ... We are not here engaged in an academic exercise or in a discourse to expound general constitutional principles of political philosophy. Our job here is to determine the fate of the petitions before us. And the outcome of these petitions is determined, ultimately, by their own facts and circumstances." (Emphasis is ours). The same view has been repeatedly emphasised in the judgment under review where we have underscored this by noting that "we have consciously confined our consideration of the petitions and arguments advanced, to the specific facts and circumstances of [these] cases".

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.

24. It must also be noted here that even Mr. Agha rightly acknowledged that allowing the Committee to pick and choose between the views of members of the Commission would amount to unwarranted slippage into the territory, which Article 175A has endeavoured to avoid. He nevertheless advanced the argument that some extra weight should be given to the opinion of the Chief Justices of the two High Courts because they would be in a better position to make an evaluation of the capabilities and potential of a nominee. This is not necessarily a correct premise because it would be equally arguable that the five senior most Judges of this Court would have a better ability to assess such potential, having had the occasion to sit in appeal over decisions of the nominees. Giving weightage to the views of one member of the Commission, apart from being questionable on the said ground, will also have the effect of negating the principle of collegiate decision-making introduced in the Constitution by Article 175A. As Mr. Makhdoom Ali Khan said with some justification, this would emasculate the Commission, reducing its power to selection of nominees only, but otherwise, in matters of actual appointment, it would be rendered subordinate to the Committee.

25. Mr. K. K. Agha then prayad that we should identify areas left open for the Committee for cases which may arise in the future. Consistent with our views expressed in paragraph 74 ibid, we will not speculate or play clairvoyant or gaze into crystal balls. We, therefore, will not make an attempt to provide for all possibilities or future eventualities. As was aptly put by Benjamin Cardozo, an American jurist and judge in the last century in his lecture on "Adherence to Precedent", "we have to pay in countless ways for the absence of prophetic vision. No doubt the ideal system, if it were attainable, would ... supply for every conceivable situation, the just and fitting rule. But life is too complex to bring the attainment of this ideal within the compass of human powers". (Cardozo, B. J. Adherence to Precedent (1921) New Haven: Yale University Press). We have already stated that the Committee has the powers indicated above. It only has to adhere to established standards in arriving at its decisions to ensure that such decisions withstand judicial scrutiny. The learned Additional Attorney General then advanced the argument that the decisions of the Commission must also state reasons and be subject to judicial review. This question does not arise in these petitions. We need not, therefore, speculate on an issue not before us.

26. The above discussion, we expect, will have demonstrated that rather than the tenor and context of our judgment, it is the mistaken reading of the same and the flawed understanding of Article 189 of the Constitution which has resulted in the unwarranted impression, that as a legal principle we have rendered the Committee redundant. PREJUDICE IN THE 18TH AMENDMENT CASE

27. The next contention of the learned Additional Attorney General was that the various parties, including the four Advocates General, in the petitions challenging the 18th Amendment, pending before a seventeen- Member Bench, stand prejudiced by the judgment under review as no notice was given to them before deciding the Constitution Petitions. This argument is based on the premise that certain issues, which were argued before the larger bench in the said case, had yet to be finally determined; therefore, instead of deciding those issues in the instant case, this bench should have either clubbed these proceedings for adjudication with the 18th Amendment cases or waited for the final decision in that case.

28. In this regard, Mr. K. K. Agha's submissions focused on the justifiability of the decisions of the Parliamentary Committee. We have considered this argument and find it to be without force. Firstly, the justiciability of the decisions of the Committee was not a central issue in the 18th Amendment cases; any submission thus made by the Federation regarding the justiciability of the Committee's decisions was only ancillary to the argument which concerned this Court's power to judicially review a constitutional amendment. It must be stated clearly that this issue has not been touched by the judgment under review and so is a matter which remains to be settled by the larger Bench in the 18th Amendment cases.

29. Moreso, it cannot be imagined that pending the decision in the said cases, any matter relating to the countless submissions made before the larger Bench cannot be adjudicated by this Court. The Constitution (18th Amendment) Act, 2010 introduced amendments in 97 Articles of the Constitution. Many of these provisions have been challenged before the other Bench. The challenged provisions concern important subjects. It would, therefore, be inappropriate to suspend the application and interpretation of the same for as long as the 18th Amendment cases remain pending.

30. Similarly, Mr. K. K. Agha's submission that the impugned judgment has prejudiced the Federation because it has made observations relating to the scope of ouster clauses, independence of the judiciary, judicial review, etc. does not carry much weight. Our observations regarding these matters are based on the limited context and issues arising in these cases. The existing legal corpus has been used while rendering our judgment. This treasure trove is available to all Courts within our jurisdiction at all times. We, therefore, do not see any prejudice being caused to the Federation as a result of our adjudication. As to prejudice to the other parties, none of them has approached us with any grievance that they have been prejudiced by our judgment. 10-A MAINTAINABILITY

31. Mr. Agha then referred to the case of Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263) and argued that Article 199 of the Constitution was available to the petitioners and, therefore, Article, 184(3) should not have been used because the power thereunder has to be sparingly used. He also added that Article 10-A which has been inserted in the Constitution through the 18th Amendment has provided for fair trial and due process. According to him, due process includes a right of at least one appeal. As such if this Court exercises power under Article 184(3) of the Constitution, this will result in denial of a right of appeal to the Federation. He also pointed out that in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), the petitioner Association had first approached the Sindh High Court and thereafter the appellate jurisdiction of this Court had been invoked since the Association was aggrieved of the High Court judgment.

32. Mr. Agha's submission was that the failure of the Court to consider Article 10A and the consequent denial of the implied right of at least one appeal and the implications of this omission have not been examined in the judgment under review. This is a new argument which was never raised during arguments in the Constitution Petitions. In principle, this is reason enough to dismiss this argument, since it has long been settled that new issues are not to be entertained at the Review stage. However, even if we were to consider this argument, it would have made no difference to the outcome of the review since it is misconceived because it ignores the express provisions of Article 184(3) of the Constitution.

33. It is clear from Article 184(3) that the Constitution has expressly empowered this Court to exercise the powers vested in a High Court under Article 199, subject to the two-fold rider that the matter should be one of public importance and should relate to the enforcement of fundamental rights. In the present cases, we have already exercised our jurisdiction under Article 184(3) ibid and find no justification for recalling the judgment under review, solely for the purpose of directing the respondents Nos. 1 and 2 (petitioners in the Constitution Petitions) to approach the High Court and then to approach this Court again if aggrieved by the decision of the High Court.

34. In view of the foregoing discussion, we find no justification for reviewing our judgment. These Review Petitions are, therefore, dismissed.

35. Keeping in mind the requirements of Articles 28 and 251 of the Constitution, and the fact that a gist of the judgment under review was also issued in Urdu, we propose to issue a gist of this opinion in Urdu which will be an appendix hereof. This will be done shortly. M.A.K./F-8/SC Petitions dismissed. P L D 2011 Supreme Court 775 Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ MUBASHER LUCMAN

Petitioner Versus FEDERATION OF PAKISTAN and others

Respondents Constitutional Petition No.32 of 2009, decided on 25th April, 2011. (a) Constitution of Pakistan

Arts. 213 & 218 [as amended]

Constitution of Election Commission

Formation of an independent and viable Election Commission is sine qua non for the holding of a free, transparent and fair election

Despite immediate effectiveness of the amended Art.213 read with Art.218 of the Constitution, the Election Commission has not been constituted to perform its function

Failure to constitute the Commission in accordance with the Constitution amounts to negation of the fundamental rights of the citizens of Pakistan

Proper and lawful formation and functioning of the Election Commission, cannot be denied. (b) Constitution of Pakistan

Art. 184(3)

Petition under Art.184(3) of the Constitution before Supreme Court

Scope

Where inaction of the State functionaries, their deviation or disregard or delay in the mandated performance of the functions under the Constitution are challenged; particularly on the parameters of the imperative demands in the Constitution, the courts have no jurisdiction to permit the State functionaries to remain static, inefficient, or lukewarm towards their constitutional duties

Non-adherence to the constitutional mandate is sure to entail serious consequences

Constitutional deviations can lead to very unpleasant results; and such situation cannot be afforded

All the organs of State are bound to protect and preserve the Constitution in terms of their solemn oath

Executive, legislature and judiciary cannot avoid and depart from their constitutional duties; they, thus, essentially have to take appropriate steps for the preservation of the constitutional and democratic order in the State. Molvi Anwar-ul-Haq, A.-G. for Pakistan and Dil Muhammad Alizai, D.A.-G. (on Court Notice) Nemo for Petitioner. Nemo for Respondents No.1 to

3. Date of hearing: 25th April, 2011. ORDER IFTIKHAR MUHAMMAD CHAUDHRY, C J.

This petition has been filed under Article 184(3) of the Constitution.

2. The relevant facts as narrated in the above petition are that the Members of the Election Commission have not so far been appointed in pursuance of the Constitutional command introduced by 18th Amendment, although Pakistan, being an Islamic Republic and a democratic State, guarantees a democratic dispensation under its Constitution. Formation of an independent and viable Election Commission is sine qua non for the holding of a free, transparent and fair election. Despite immediate effectiveness of the amended Art.213 read with Art.218, the Election Commission has not been constituted to perform its function. The failure to constitute the Commission in accordance with the Constitution amounts to negation of the fundamental rights of the citizens of Pakistan. As such the petitioner has sought due adherence to the Constitution in the proper and lawful formation and functioning of the Commission, which cannot be denied. As per the petitioner, realizing this constitutional failure and deviation, he, as a citizen was left with no other alternative but to approach this Court with the following prayer:-- " that respondents may be directed to perform their constitutional duty and functions of constituting the Commission in accordance with the Constitution and this Hon'ble Court may issue such other orders or directions as may be considered appropriate in the circumstances of the matter."

3. Notices were served upon the respondents. However, no one appeared on behalf of the Ministry of Law, Justice and Human Rights on 12th April, 2011, therefore case was postponed to 20th April, 2011,when the following order was passed:-- "No one has appeared on behalf of the Federation of Pakistan, the Ministry of Law Justice and Human Rights Division and the Speaker National Assembly despite service of the order dated 12-4-2011 on 14-4-2011. Syed Sher Afgan, Joint Secretary has, however, appeared on behalf of Chief Election Commission and stated that Speaker National Assembly has constituted a parliamentary committee and according to his information/ knowledge the committee is going to promulgate its rules. He, however, states that he has no knowledge as to whether constitutional provisions relating to completion of the Election Commission are likely to be followed in the near future or not.

2. It is to be noted that command of the Constitution to complete the formation of the Election Commission is required to be fulfilled as early as could be possible. Learned Attorney General is also not in attendance. Hearing is adjourned enabling the respondents Nos. 1 and 2 to file concise statements clearly mentioning therein about the adherence to the Constitutional provisions for the completion of the Election Commission as it has been noted in the earlier order as above. To come up on 25th April, 2011".

4. Learned Attorney General has appeared on behalf of Federation of Pakistan but no concise statement has been filed. It is, however, informed by the learned Attorney General that in the meanwhile a Parliamentary Committee already constituted, has initiated the process for the appointment of the members of the Election Commission but so far no such appointment has been made. And that thereafter the constitutional requirement shall be fulfilled as early as could be possible. The learned Attorney General when reminded that amendment in the relevant Articles of the Constitution relating to the formation of the Election Commission, was made as back as on 20th April, 2010 and that the Commission was charged with duties enumerated in Article 219, he had no satisfactory reply to furnish. The provisions of Article 219 are reproduced herein below for convenience:-- "

219. The (Commission) shall be charged with the duty of

(a) preparing electoral rolls for election to the National Assembly and the Provincial Assembly, and revising such rolls annually; (b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and (c) appointing Election Tribunals [;] (d) the holding of general elections to the National Assembly, Provincial Assemblies and the Local Governments; and (e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament).]"

5. It may be noted that within the terms of Article 218(2)(b) of the Constitution, the Commission shall consist of "four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commission in clauses (2A) and (2B) of Article 213". However, no person has yet been appointed as a Member of the Commission. It is not understandable how the above noted duties of the Commission, in particular those in clauses (a) & (b) of Article 219, are being performed. Where inaction of the State functionaries, their deviation or disregard or delay in the mandated performance of the functions under the Constitution are challenged; particularly on the parameters of the imperative demands in the Constitution, the courts have no jurisdiction to permit the State functionaries to remain static, inefficient, or lukewarm towards their constitutional duties. We may observe that non-adherence to the constitutional mandate is sure to entail serious consequences. Needless to state that in the past constitutional deviations led to very unpleasant results; and such situation cannot be afforded now. We are all bound to protect and preserve the Constitution in terms of our solemn oath. The executive, legislature and judiciary cannot avoid and depart from their constitutional duties. They, thus, essentially have to take appropriate steps for the preservation of the constitutional and democratic order in the State.

6. We regret to observe that despite pendency of the petition, issuance/service of the notices and passing of the orders (reference of which has been made hereinabove), the Election Commission is yet to become a reality in terms of the Constitution to carry out its mandated duties. With these observations we allow the petition. We reiterate that Non-completion of the Commission will be a deviation from the Constitution which cannot be allowed. The Constitution has to be strictly followed in its letter and spirit. M.A.K./M-31/S Petition allowed.