P L D 1998 Supreme Court 33 (PLP)

For detailed reasons to follow, we pass the following short order disposing of Constitutional Petition No. l -P of 1997, Akhunzada Behrawar Saeed v. Mr. Justice Sajjad Ali Shah and others; Constitutional Petition No.248-Q of 1997, Malik Asad Ali v. Federation of Pakistan and others and Constitutional Petition No.55 of 1997, Nihal Hashmi v. Federation of Pakistan and others, all three petitions filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as 'the Constitution') challenging directly the appointment of Mr. Justicc Sajjad Ali Shah as the Chief Justice of Pakistan, and a Miscellaneous Application No.992 of 1997 in Constitutional Petition No.140-Q of 1996, Munir Ahmed v. Barra Khan and others, attacking collaterally the validity of the appointment of Mr. Justice Sajjad Ali Shah, as the Chief Justice of Pakistan.

2. Preliminary objections as to the maintainability of the above petitions have been raised on the grounds that the petitioners have no locus standi and no question of violation of any of the Fundamental Rights guaranteed under Chapter I of Part 11 of the Constitution arises in these cases.

3. Right of access to impartial and independent Courts/Tribunals is a fundamental right of every citizen. The exercise of this right is dependent on the independence of judiciary which can be secured only through appointment of persons of high integrity, repute and competence, strictly in accordance with the procedure prescribed under the Constitution to the high office of the Judges of Superior Courts. The selection of a person to the high office of the Chief Justice of Pakistan is a pivotal appointment for maintaining the independence of A judiciary and for providing a free and unobstructed access to impartial and independent Courts/Tribunals to the ordinary citizens. Therefore, any deviation from the method prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan, would give rise to the infringement of the right of a citizen to have free, fair and equal access to an independent and impartial Court/Tribunal, thus violating the rights guaranteed under Articles 9 and 25 of the Constitution.

4. A similar contention raised about the maintainability of the petition in the case of AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, was repelled by this Court, as follows:- "1'

2. As regards the locus standi of Mr. Khairi, I may observe that Mr. Khairi has referred to Rule 165 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, hereinafter referred to as the Rules, framed under section 55 of the Bar Councils Act, 1973, which provides as follows:- '

165. It is the duty of Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business political or other character which may embarrass their free and fair consideration of the questions before them for decision. The aspiration of Advocates for judicial positions should be governed by an impractical estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.' He has also referred to the following cases: (i) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; (ii) Government of Sindh through Chief Secretary, Karachi v Sharaf Faridi and others PLD 1994 SC 105; The question relating to the appointment of Chief Justice of Pakistan was not determined by Supreme Court in Al-Jehad Trust case (PLD 1996 SC 324) and was left open. In view of the observations of .'Supreme Court in Al-Jehad case the question relating to the validity of the appointment of Chief Justice of Pakistan was not a past and closed issue but was very much a live controversy requiring authoritative determination by Supreme Court. The controversy regarding validity of the appointment of the Chief Justice of Pakistan, otherwise needed to be determined finally to prevent any such recurrence in future and to settle the issue regarding appointment to the office of Chief Justice of Pakistan, once for all, for future guidance of the Executive for the following additional reasons:- (i) That the decision in Al-Jehad Trust case, was rendered by a Bench of Supreme Court which was presided over by the Chief Justice in question and therefore, it could not effectively decide the controversy relating to the validity of his appointment as the Chief Justice of Pakistan, in view of the following provision contained in the Code of Conduct issued by the Supreme Judicial Council signed by all the Judges of the Superior Courts:- "A Judge must decline resolutely to act in a case involving his own interest including those of persons whom he regards and treats as near relatives or close friends. " ?????????? (ii) That the failure on the part of Judges of Supreme Court, who were senior to the said Chief Justice, to challenge his appointment as the Chief Justice of Pakistan for reasons of maintaining a high degree of comity amongst the Judges of Supreme Court, neither amounted to acquiescence in his unconstitutional appointment as the Chief Justice of Pakistan, nor this omission on their part could create any estoppel against them muchless against the petitioners who were the citizens of Pakistan and felt aggrieved by the unconstitutional appointment of the Chief Justice of Pakistan. There could, of course, be no estoppel against the law or against a constitutional provision, and (iii) That the unconstitutional appointment of the Chief Justice of Pakistan, gave rise to a recurring cause of action which would continue to arise so long he occupied the office of Chief Justice of Pakistan. The appointment of the Chief Justice of Pakistan was wholly unconstitutional, illegal and contrary to the decision of Supreme Court in Al-Jehad Trust case and accordingly, same was declared to be invalid, unconstitutional and of no legal consequence. The Chief Justice of Pakistan was restrained by the Supreme Court through an interim order passed in Constitutional Petition from performing any judicial or administrative function as Chief Justice of Pakistan, on 26-11-1997. This order was re-affirmed by the Court on 28- 11-1997. Subsequently, Supreme Court Bench consisting of 10 Judges also adopted and re-affirmed the order passed by another Bench on 28- 11-1997 through its order dated 2-12-1997. Therefore, all orders passed by said Chief Justice of Pakistan on or after 26-11-1997 in his capacity as the Chief Justice of Pakistan were without lawful authority and of no legal effect. However, any orders passed or action taken by him prior to 26-11-1997 'will not' be open to challenge on the principle of exercise of power by him as the de facto Chief Justice of Pakistan. Supreme Court held that in consequence of above declaration said Chief Justice of Pakistan had ceased to hold the office of Chief Justice of Pakistan and stood reverted to the position of a Judge of Supreme Court in accordance with his seniority position amongst the Judges of Supreme Court. The Federal Government conceded that there was nothing against the most senior of all the Judges of Supreme Court, from being appointed as the Chief Justice of Pakistan. The Federal Government was, accordingly, directed to denotify the appointment of Chief Justice of Pakistan and notify the appointment of most senior Judge as the Chief Justice of Pakistan forthwith. Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref. M. Aslam Chishti, Senior Advocate Supreme Court and Mrs. Ashraf Abbasi, Advocate-on-Record for Petitioner (in Constitutional Petition No.248-Q of 1997). Raja Haq Nawaz Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record assisted by Raja Muqsit Nawaz, Advocate for Respondent No. l (in Constitutional Petition No.248-Q of 1997). Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Ghulam Hussain Abbasi, Advocate Supreme Court, Ijaz Muhammad Khan, Advocate-onRecord (also assisted (in all cases with permission)) by Mian Gul Hassan Aurangzeb, Advocate, Miss Saleh Hayat, Advocate, Saeedur Rehman, Rashid Hanif, Tariq Aziz and Sardar Anzar Iqbal Khan, Advocates for Respondent No.2 (in Constitutional Petition No.248-Q of 1997). Nemo for Respondent No.3 (in Constitutional Petition No.248-Q of 1997) Petitioner in person with Mian M.. Ismail Qureshi, Advocate-on-Record (in Constitutional Petition No. l-P of 1997). Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Naeem Bukhari, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No. 1 (in Constitutional Petition No. l-P of 1997). Nemo for Respondent No.2, (in Constitutional Petition No.l-P o1 1997) S. Sami Ahmad, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.3 (in Constitutional Petition No.l-P of 1997). Petitioner in person (in Constitutional Petition No.55 of 1997) Raja Haq Nawaz Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. l (in Constitutional Petition No.55 of 1997). Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Ahmad Raza Khan Kasuri, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in Constitutional Petition No.55 of 1997). Nemo for Respondent No.3 (in Constitutional Petition No.55 of 1997) Raja M.Afsar, Advocate-on-Record for Applicant (in C.M.A.No.992 of 1997 in C.P. No. 140-Q of 1996). Ch. Akhtar Ali, Advocate-on-Record for the Federal Government Ch. M. Farooq, Attorney-General on Court Notice. Syed Sharifuddin Pirzada, Senior Advocate Supreme Court: Amicus curiae Dates of hearing; 2 to 5, 10 to 12, 15 to 19, 22 and 23rd December, 1997 ORDER For detailed reasons to follow, we pass the following short order disposing of Constitutional Petition, No. l -P of 1997, Akhunzada Behrawar Saeed v. Mr. Justice Sajjad Ali Shah and others; Constitutional Petition No.248-Q of 1997, Malik Asad Ali v. Federation of Pakistan and others and Constitutional Petition No.55 of 1997, Nihal Hashmi v. Federation of Pakistan and others, all three petitions filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as 'the Constitution') challenging directly the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, and a Miscellaneous Application No.992 of 1997 in Constitutional Petition No.140-Q of 1996, Munir Ahmed v. Barra Khan and others, attacking collaterally the validity of the appointment of Mr. Justice Sajjad Ali Shah, as the Chief Justice of Pakistan.

2. Preliminary objections as to the maintainability of the above petitions have been raised on the grounds that the petitioners have no locus standi and no question of violation of any of the Fundamental Rights guaranteed under Chapter I of Part II of the Constitution arises in these cases.

3. Right of access to impartial and independent Courts/Tribunals is a fundamental right of every citizen. The exercise of this right is dependent on the independence of judiciary which can be secured only through appointment of persons of high integrity, repute and competence, strictly in accordance with the procedure prescribed under the Constitution to the high office of the Judges of Superior Courts. The selection of a person to the high office of the Chief Justice of Pakistan is a pivotal appointment for maintaining the independence of A judiciary and for providing a free and unobstructed access to impartial and independent Courts/Tribunals to the ordinary citizens. Therefore, any deviation from the method prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan, would give rise to the infringement of the right of a citizen to have free, fair and equal access to an independent and impartial Court/Tribunal, thus violating the rights guaranteed under Articles 9 and 25 of the Constitution.

4. A similar contention raised about the maintainability of the petition in the case of AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, was repelled by this Court, as follows:- "

12. As regards the locus standi of Mr. Khairi, I may observe that Mr. Khairi has referred to Rule 165 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, hereinafter referred to as the Rules, framed under section 55 of the Bar Councils Act, 1973, which provides as follows:- '

165. It is the duty of Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business political or other character which may embarrass their free and fair consideration of the questions before them for decision. The aspiration of Advocates for judicial positions should be governed by an impractical estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.' He has also referred to the following cases: (i) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; (ii) Government of Sindh through Chief Secretary, Karachi v. Sharaf Faridi and others PLD 1994 SC 105; (iii) S.P.Gupta's case AIR 1982 SC 149; and (iv) Supreme Court Advocates-on-Record Association v Union of India AIR 1994 SC 268.

13. Rule 165 of the Rules relied upon by Mr. Khairi enjoins the Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. It also enjoins the advocates that they should protest earnestly and actively against appointment and selection of persons who are unsuitable for the bench and thus should strive to have elevated thereto only those willing to forego other employments whether of business, political or other, character which may embarrass their free and fair consideration of the questions before them for decision.

14. The above reports relied upon also support Mr. Khairi's contention. I am inclined to hold that not only a practising advocate but even a member of the public is entitled to see that the three limbs of the State, namely, the Legislature, the Executive and the Judiciary act not in violation of any provision of the Constitution, which affect the public at large. The Fundamental Rights, which are enshrined in our Constitution and which also have the backing of our religion Islam, will become meaningless if there is no independent Judiciary available in the country. The independence of Judiciary is inextricably linked and? connected with the Constitutional process of appointment of Judges of the superior Judiciary. If the appointments of Judges are not made in the manner provided in the Constitution or in terms thereof, the same will be detrimental to the independence of Judiciary which will lead to lack of confidence among the people. In my view, the appellants/petitioners have locus standi as the Constitutional questions raised in the appeal as well as in the aforesaid Constitution Petition are of great public importance as to the working of the Judiciary as an independent organ of the State. Even otherwise, the question of locus standi in the present case has lost significance for the reason that we have admitted the above Constitution petition under Article 184(3) of the Constitution for examining the scope and import of the provisions relating to Judiciary. It may be observed that under Article 184(3) of the Constitution, this Court is entitled to take cognizance of any matter which involves a question of public importance with reference to the enforcement of any of the Fundamental Rights. conferred by Chapter 1 of Part II of the Constitution even suo motu without having any formal petition . . .. ... . . . .. . ... . . . .. ..

18. At this juncture, I may point out the right to have access to justice through an independent Judiciary is a Fundamental Right as held in the case of Sharaf Faridi (supra) by Saleem Akhtar, J. In this regard reference may be made to the following observation:- 'The right of 'access to justice to all' is a well-recognized inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby on Constitution of United States, Second Edition, Vol. 11 at page 1709 where the term 'due process of law' has been summarized.' The above view has been affirmed by this Court in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341. " We are, therefore, of the view that the petitioners, who are not only the citizens of Pakistan but practising advocates and one of them is the Chairman of Civil Liberties, Union of Pakistan, have necessary locus standi to file the above petitions. The petitioners have alleged violation of their fundamental rights to H have free and equal access to the independent and impartial Court/Tribunal on account of appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, in violation of the provisions of the Constitution and, therefore, these petitions are maintainable.

5. Another preliminary objection is raised on behalf of respondent No.2 as to the competency of this Bench to hear these petitions. It is asserted that under the orders of Quetta and Peshawar Benches of this Court and the dissenting opinion of Mr. Justice Mamoon Kazi, the above cases should have been heard by the Full Court consisting of all the Judges of this Court minus Mr. Justice Sajjad Ali Shah. The present Bench which consists of only 10 out of 17 Judges of this Court, therefore, cannot hear these cases. An application in this behalf was also moved by the counsel for respondent No.2 before Hon'ble Acting Chief Justice which was forwarded to this Bench for disposal. Out of the 17 Judges of this Court which constituted Full Court, Mr. Justice Sajjad Ali Shah could not sit on the Bench as he is one of the respondents in these cases. The next senior Judge Mr. Justice Ajmal Mian declined to sit on the Bench as he was of the view that his personal interest is involved in the cases. Therefore, while constituting the Full Court under the direction of Division Bench of this Court which passed orders to this effect in Constitutional Petition No.l-P of 1997, the Full Court comprising remaining 15 Judges was constituted. However, one of the Judges Mr. Justice Mukhtar Ahmad Junejo not only declined to participate in the Full Court proceedings but he proceeded on leave up to 23-12-1997. The remaining four Hon'ble Judges were requested on 1st and 2nd December to attend the Full Court proceedings but they declined to sit on the Full Court sitting constituted under the orders of the Division Bench in Constitutional Petition No. l-P of 1997. In these circumstances, the remaining ten Judges of this Court constituted the Full Court in law as no Judge could be compelled against his wish to participate in the Full Court proceedings. The Full Court proceedings went on from day to day from 2nd December, 1997 and it C was only on 15-12-1997 when the proceedings were nearing to a close that a written request was made on behalf of respondent No.2 to include the remaining Judges also in the Full Court proceedings which could not be allowed in the above-stated circumstances. We, accordingly, overrule the objection regarding in competency of this Bench to hear these cases and reject the objection petition under Order XXXIII, Rule 6 of Supreme Court Rules, filed on behalf of respondent No.2.

6. This Court in the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 while interpreting the provisions of Article 193 of the Constitution, relating to the appointment of Chief Justice of a Provincial High Court, on the basis of convention followed in this behalf held, that the senior most Judge of the High Court, in the absence of any concrete and valid reason, has to be appointed as the Chief Justice of the High Court. We are of the view that the above rationale laid down by this Court for appointment of the Chief D Justice of High Court applied with greater force in the case of appointment of Chief Justice of Pakistan under Article 177 of the Constitution, in view of the more consistent practice and convention followed in this regard for appointment of Chief Justice of Pakistan in the past and especially in view of the provisions contained in Article 180 of the Constitution which recognises the principle of seniority as the sole criteria for appointment of Acting Chief Justice of Pakistan.

7. The question relating to the appointment of Chief Justice of Pakistan was not determined by this Court in Al-Jehad Trust case (supra) and was left E open as is evident from the following paragraph in the short order announced by the Court on the conclusion of arguments in that case, which was subscribed by all the learned members of the Bench:-- , "

6. Article 177 of the Constitution envisages that the Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice. As against this, for appointment of Acting Chief Justice of Pakistan, Article 180 provides that when the office of the Chief Justice of Pakistan is vacant or he is absent or unable to perform the functions of his office, the President shall appoint the most senior of the other Judges of the Supreme Court to act as the Chief Justice of Pakistan. We are not going into the question of interpretation of these two provisions in the light of contention that criterion of the most senior Judge in the appointment of Acting Chief Justice of Pakistan for the reason firstly that in Constitutional Petition No.29 of 1994, which is directly filed in this Court, appointment of the Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide C.M.A. 541-K of 1996, dated 10th March, 1996. Secondly, proper assistance by the learned counsel on this point was also not rendered. thirdly, the cases are pending in which the same subject-matter is involved. For such reasons, we do not consider it .proper to go into the question of interpretation of these two provisions." In view of the above-quoted observations of this Court in Al-Jehad case (supra), we are firmly of the view that the question relating to the validity of the' appointment of Mr. Justice Sajjad Ali Shah is not a past and closed issue but is very much a live controversy requiring authoritative determination by this Court. We are further of the view that the controversy regarding validity of the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, otherwise needs to be determined finally now to prevent any such recurrence in future and to settle the issue regarding appointment to the office of Chief Justice of Pakistan, once for all for future guidance of the Executive for the following additional reasons:- (i) That the decision in Al-Jehad Trust case (supra), was rendered by a Bench of this Court which was presided over by Mr.Justice Sajjad Ali Shah, and therefore, it could not effectively decide the controversy relating to the validity of appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, in view of the following provision contained in the Code of Conduct issued by the Supreme Judicial Council signed by all the Judges of the Superior Courts:- 'A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.' (ii) That the failure on the part of Judges of this Court who were senior to Mr. Justice Sajjad Ali Shah to challenge his appointment as the Chief Justice of Pakistan for reasons of maintaining a high degree of comity amongst the Judges of this Court neither amounted to acquiescence in the unconstitutional appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, nor this omission on their part could create any estoppel against them muchless against the petitioners who are the citizens of Pakistan and feel aggrieved by the unconstitutional appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan. There can, of course, be no estoppel against the law or against a constitutional provision, and ???????? (iii) That the unconstitutional appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan, gave rise to a recurring cause of action which continues to arise so long he occupies the office of Chief Justice of Pakistan." We, therefore, hold that the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan was wholly unconstitutional, illegal and contrary to the decision of this Court in Al-Jehad Trust case (supra) and accordingly, declare it invalid, unconstitutional and of no legal consequence.

8. Mr.Justice Sajjad Ali Shah was restrained by the Quetta Bench of this Court through an interim order passed in Constitutional Petition No.248-Q of 1997 from performing any judicial or administrative function as Chief Justice of Pakistan, on 26-11-1997. This order was re-affirmed by the Quetta Bench on 28-11-1997 after hearing the petitioner's counsel, the learned Attorney-General and Mr. S.S. Pirzada, the learned amicus curiae. Subsequently, this Bench also adopted and re-affirmed the order passed by Peshawar Bench on 28-11-1997 through its order dated 2-12-1997. Therefore, all orders passed by Mr.Justice Sajjad Ali Shah on or after 26-11-1997 in his capacity as the Chief Justice of Pakistan are without lawful authority and of no legal effect. However, any orders passed or action taken by him prior to 26-11-1997 will not be open to be challenged on the principle of exercise of power by Mr. Justice Sajjad Ali Shah as the de facto Chief Justice of Pakistan.

9. In consequence of the above declaration Mr. Justice Sajjad Ali Shah ceases to hold the office of Chief Justice of Pakistan and reverts to the position of a Judge of Supreme Court in accordance with his seniority position amongst the Judges of this Court. The Federal Government conceded before us that there is nothing against Mr. Justice Ajmal Mian, the most senior of all the Judges of this Court, from being appointed as the Chief Justice of Pakistan. The Federal Government is, accordingly, directed to denotify the appointment of Mr. Justice Sajjad Ali Shah as the Chief Justice of Pakistan and notify the appointment of Mr. Justice Ajmal Mian as the Chief Justice of Pakistan forthwith.

10. The petitions and the miscellaneous application mentioned above are disposed of in the terms stated above. M.B.A./A-32/S??????????? Order accordingly