Independence of judiciary

Remuneration, terms and conditions and security of tenure of judges is part and parcel of independent judiciary.

Independence of judiciary is one of the fundamental features of the Constitution of Pakistan which basic feature is superior to even fundamental rights guaranteed under the Constitution and the vires of the Constitution (including fundamental rights) can be examined by the Supreme Court on salient features theory.

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 22 (4) [as amended by Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Ordinance (II of 2020)]

Control of Narcotic Substances Act (XXV of 1997), Ss.45 & 46

Subordinate judiciary

Control and supervision

Independence of Judiciary

Implied repeal

Defective doctrine

Subsequent consultation with Chief Justice

Effect

Petitioner was aggrieved of amendment inserted on the basis of Ordinance promulgated by Provincial Governor abridging powers of Chief Justice designating Special Courts without consultation with Chief Justice of Peshawar High Court

Validity

Matters of appointment, promotion, posting, transfer and conferment of powers including terms and conditions of service of members of Subordinate Judiciary, were controlled and governed by High Court of the Province

Any legislative enactment in the garb of power of promulgating an Ordinance, for grabbing Constitutionally assigned mandate of Judiciary was not only violative of Arts. 175(3) & 203 of the Constitution but also offended against Constitutional scheme of independence of Judiciary enumerated in Art. 175 of the Constitution and Objectives Resolution

Inappropriate and unwarranted interference with powers vested in Chief Justice and High Court by any Executive Authority, could create an imbalance in Constitutionally empowered organs of the State which resulted into a state of great confusion and turmoil

Division of functions of three main Organs of State were recognized and emphasized by the Constitution

Later statute repealed the earlier statute and by insertion of S.22 in Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, i.e. specific provision for establishment of Court in Khyber Pakhtunkhwa, provisions of Ss.45 & 46 of Control of Narcotic Substances Act, 1997, had lost their efficacy and applicability in Khyber Pakhtunkhwa and was deemed as impliedly repealed

Any amendment abridging powers of Chief Justice and High Court and empowering the Executive Authority to confer power on a judicial Officer or designate a Court without consultation of Chief Justice, not only amounted to intrusion and encroachment on the powers vested in Chief Justice and High Court but also was violative of Arts. 2-A, 175(3) & 203 of the Constitution

Powers conferred upon Sessions Judges, Additional Sessions Judges and Judicial Magistrates 1st Class as Special Court under Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Ordinance, 2020, without consultation and consent of Chief Justice of the High Court was in violation of S.22 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 and Arts. 2A, 175(3) & 203 of the Constitution

Such act of government was void ab initio and holder of the posts of Special Judges as Special Court was to be treated as having exercised powers and functions in a defective capacity

High Court protected all acts done and orders and judgments passed by judges so appointed, including all proceedings under Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, under defective doctrine, as Provincial Government had rectified its mistake through a subsequent notification and had consulted Chief Justice as required under S. 22 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019

Constitutional petition was allowed accordingly.

S.3(3), [as amended by Khyber Pakhtunkhwa Service Tribunals (Amendment) Act (XXII of 2013), Ss.3-B & 4 and Khyber Pakhtunkhwa Service Tribunals (Amendment) Act (XL of 2014)], S.3(3)(b)

Constitution of Pakistan, Art.2(A)

Appointment of executive members amongst civil servants in the Khyber Pakhtunkhwa Service Tribunal

Separation of judiciary from executive

Independence of judiciary

Scope

Contention of petitioner was that appointment of executive members in Khyber Pakhtunkhwa Service was interference of executive in the independence of judiciary

Validity

Section 3(3) of Khyber Pakhtunkhwa Service Tribunals Act, 1974 was ultra vires to the Constitution

Necessary amendments in Khyber Pakhtunkhwa Service Tribunals Act, 1974 had been made

Article 2(A) of the Constitution could not be used to strike down the statute

Constitutional petition had no substance which was dismissed, in circumstances.

Inquiry was conducted and officer was awarded major penalty of withholding of promotion for five years by the Chief Justice of the High Court

Service Tribunal accepted the appeal of judicial officer on the ground that the Chief Justice of the High Court was not competent to initiate proceedings against Sub-Registrar

Validity

No new appointments of Registrar and Sub-Registrar were made nor fresh terms and conditions of service were determined rather only additional charge was assigned to the judges of subordinate judiciary

Basic appointment of the officer had been made as a judicial officer subordinate to High Court and only an additional charge of Sub-Registrar was assigned to him by the Government

If the officer had committed any illegality/irregularity while performing additional duty then appointing authority under whose subordination he was performing duty was competent to proceed against him

Chief Justice of the High Court was performing the duty of Inspector General of Registration

Government had delegated powers of Inspector General of Registration to the Chief Justice the High Court which did not mean that he had become subordinate to the Government

If the Chief Justice of the High Court while performing the function as Inspector General of Registration committed any illegality/irregularity then Government was not vested with the powers to proceed against him rather matter had to be referred to the Supreme Judicial Council

Chief Justice was not supposed to be the subordinate of Government merely on the ground that it had delegated to him the powers of Inspector General of Registration

Registrars/Sub-Registrars, at present, were judicial officers

Observation of Service Tribunal that Government was competent authority with regard to judicial officers performing their duties as Registrars or Sub-Registrars was against the spirit of independence of judiciary

Only the Chief Justice of the High Court was competent authority to proceed against judicial officers or employees of subordinate judiciary

Service Tribunal had not decided the case of judicial officer on merits and it would be proper to remand the same to the Service Tribunal for decision on merits

Impugned judgment passed by the Service Tribunal was set aside and case was remanded to the Service Tribunal for decision afresh on merits

Appeal was allowed in circumstances.

Object and scope.

Constitution protects the independence of judiciary from the executive and the legislature which includes financial independence from the other two pillar of the State.

Constitutional petition was filed for grant of fifty percent increase in Judicial Allowance and Ad hoc Allowance which was accepted holding that High Court had budgetary and financial control, that it could draw its own administrative expenses including remuneration of its officers and servants; that administrative expenses did not require the approval of Governor or the consent of Provincial Assembly; that expenses proposed by the High Court could not be turned down, revised or altered by the executive or legislature and that no provision existed that could allow the Provincial Executive to delay or reconsider, negate, alter or reduce the administrative expenses of the High Court

Validity

High Court (Lahore) Rules and Orders had provided for the appointment and conditions of service for the establishment of the High Court

Said Rules had been approved by the Governor

Approval of Governor was required for making the High Court Rules but not for increase in pay and allowances

Chief Justice as a competent authority could create posts, make appointments, fix seniority and grant promotion

Chief Justice could determine pay and allowances of the members of the establishment of High Court

Terms and conditions of service, pay and any increase thereof along with grant of any allowance had to be decided by the Chief Justice without any approval of the Governor

Once rules had been approved, the Governor had no role and could not interfere in the pay and allowances fixed by the Chief Justice

Government was bound to comply with the orders of Chief Justice and Administration Committee

Article 121 of the Constitution protects the administrative expenses and remunerations payable to the officers and servants of the High Court

Judiciary should have absolute control over its employees and it should have decide all the matters with regard to terms and conditions of its employees

Such decisions could not be made subject to the approval of Governor

Employees of High Court did not fall under the control and management of Provincial Government

Employees of the High Court would be governed by the provisions of Civil Service Rules (Punjab) with regard to salaries, allowances, leave or pension but they were not civil servants

Intra court appeal was dismissed in circumstances.

Chief Justice of High Court had power to sanction pension provided same was covered by the rules and certified by the Audit Officer to be admissible

Supreme Court and Federal Shariat Court with the approval of the President and High Court with the approval of the Governor concerned might make rules providing for appointment by the Court of officers and servants of the Court and for their terms and conditions of employment

Object in making special dispensation for officers and servants of the Court was to ensure the independence of Superior Courts

High Court to remain independent and free from interference in its affairs by the executive authorities

Payment of judicial allowance could not be treated as an ad hoc relief or any benefit of contingent or reliant nature but same was one of the components of the emoluments which was being paid during active service

Special pay of all types and nature was part of emoluments including other emoluments which might be specially classed as pay

Overseas pay, technical pay, special pay and personal pay were also integral part of pay except the pay other than special pay or pay granted in view of personal qualification which had been sanctioned for a post held by an employee substantively or in an officiating capacity or to which he was entitled by reason of his position in a cadre

Judicial allowance was allowed to the employees across the board

Judicial allowance was neither extended to a person specific nor sanctioned for a post held by an employee substantively or in an officiating capacity or to which he was entitled by reason of his position in a cadre

Judicial allowance was part of emoluments/pay/salary and reckonable being one of the components for pension calculation

Chief Justice of High Court had all the powers of government in the administrative department with regard to officers and servants of the High Court

Judicial allowance had been treated as emolument for the purpose of pension with regard to judicial officers and such benefit had also been extended to the staff and officers of the High Court (Sindh)

Judicial allowance was reckonable for the calculation of pension as part of emoluments

Petitioners and other retired employees placed in similar position were entitled for accumulation of judicial allowance in pension calculation

Government was directed to re-calculate pension within specified period after giving effect of judicial allowance and start the future payment accordingly and arrears be also paid

Constitutional petition was accepted in circumstances.

Reasons for superior judiciary in Pakistan to exercise its powers with restraint and wisdom stated.

When democracy was weakened, the judiciary was weakened too.

Phrase independence of the judiciary in Constitutional parlance meant an institutional independence i.e., the judiciary, as an institution, was independent; the reference was not to personalities but to the office held by members of the judiciary; an independence, above all, from the Executive, and an independence also from the Legislature.

Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [Eighteenth Amendment]

Process of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court

Role of Judicial Commission and Parliamentary Committee in the appointment process of Judges

Constitutionality

Independence of judiciary

Separation of Judiciary from the Executive

Scope

Contention of petitioners that independence of judiciary was inextricably linked and connected with the Constitutional process of appointment of Judges of the superior judiciary, and, therefore, changes brought by the Eighteenth Amendment politicized such process by involving politicians in the same, which directly impinged upon independence of the judiciary

Validity

People of Pakistan were the actual stake-holders for whose benefit the judicial system was created, thus their involvement in the appointment of judges through their chosen representatives could not be termed as politicizing the matter

People of Pakistan through their chosen representatives had the right to change the mode of judicial appointments set out in the Constitution

Constitution and different laws of Pakistan already recognized involvement of one organ of State in appointments in another organ

When the Constitution of Pakistan spoke of independence of the judiciary it spoke of independence of the judiciary as an existing organ when the Judges already stood appointed

After a person became a part of the Judiciary the mechanisms of independence of the judiciary set out by the Constitution became operational and started protecting it from the organs other vis-a-vis its functional autonomy, thus, concept of independence of judiciary could not be stretched to the process of appointment of Judges

Article 175A of the Constitution also marginalized the roles of the President, the Prime Minister and the ruling party in appointment of judges of the superior courts, to avoid any undue influence in appointments

Involvement of the Parliament through a Parliamentary Committee in the process of appointment of Judges of the superior courts was, thus, not likely to impinge upon independence of the judiciary and it also did not offend the concept of separation of powers between the Judiciary and the Executive

Detailed reasons stated.

Concept described.

Parliamentary Committee not confirming person nominated by Judicial Commission for appointment as Additional Judge of the High Court

Independence of judiciary

Scope

Judicial Commission, in the present case, after an in-depth discussion about the professional caliber, legal acumen, judicial skills, commitment/devotion to duty, and antecedents of the (seven) persons proposed by the Chief Justice of the relevant High Court, unanimously recommended all the seven persons for appointment as Additional Judges of High Court for a period of one year

Nominations of the Judicial Commission were placed before the Parliamentary Committee, which approved all nominations except that of the nominated person in question on the basis that said person did not have significant reported cases in law journals and his few reported cases did not include any important or known case involving question of law or Constitution; that in some of the judgments, cited to his credit, he had appeared as associate counsel while most others were not of significance; that his appearance in Supreme Court was only symbolic; that he did not have the requisite qualifications/experience and professional competence to become a Judge of High Court and that said observations of the Committee were supported by the reports of Intelligence Bureau

Constitutionality

Parliamentary Committee ("Committee") in the present case, instead of carrying out its constitutional obligation and relying on independent evidence to judge the personal antecedents of the nominated person, had instead, re-examined and reviewed the findings of the Judicial Commission ("Commission") by examining the same material and evidence already examined and analyzed by the Commission and by commenting on the legal antecedents of the candidate rather than the personal antecedents which fell within the jurisdictional purview of the Committee

Committee had, therefore, transgressed its constitutional limits and entered into the territory reserved for the Commission, thereby offending the principles of separation of powers and independence of judiciary

Committee did not enjoy the power to review, reverse or substitute the decision of the Commission

Impugned decision of the Committee was, therefore, unconstitutional

Said decision of the Committee, even on merits, showed that the Committee had entered the sphere of interest of the Commission and examined the legal antecedents of the nominated person

Impugned decision of the Committee examined the "competency, qualifications, standing and integrity" of the nominated person, and substantially rested on the intelligence reports and that too regarding professional competence of the nominated person

Intelligence reports received by the Committee appeared to have been preferred over the findings and nomination of the Commission, which was the apex constitutional body to assess the legal and professional competence of a candidate

Regarding merits of Committee's decision, perusal of the record revealed that the number of reported cases of the nominated person were almost the same as the other candidates; that pending cases of the nominated person were more than some of the other candidates; that in almost all the judgments the nominated person appeared as counsel for his clients, however, in three cases the presence of another colleague had also been marked; that none of the judgments showed that the nominated person in question appeared as an "associate counsel," a term coined by the Committee, perhaps to highlight, a baseless assumption, that the nominated person did not singularly conduct such cases

Reasons of the Committee were frail and cosmetic and could not be sustained

Besides, such aspects found little weight before the Commission, which unanimously approved the candidature of the nominated person

Decision of the Committee was not sustainable under the Constitution and the law and was, therefore, set aside to the extent of the nominated person with the direction to the Federal Government to issue notification for the appointment of nominated person, as Additional Judge (of the High Court) on the basis of the nomination of the Commission which stood in the field

Constitutional petition was allowed accordingly.

Concept described.

Indepen-dence of judiciary is measured by the conduct of the presiding judge in guaranteeing the right to fair trial and giving decisions without fear or favour.

Judicial independence both of the individual Judge and of the Judiciary as an institution was essential so that those who brought their causes/cases before the Judges and the public in general had confidence that their cases would be decided justly and in accordance with law

Judicial independence was one of the foundational values of the Constitution which was based on trichotomy of powers in which the functions of each organ of the State had been constitutionally delineated

Fundamental Rights guaranteed under the Constitution could not be secured unless Judiciary was independent because the enforcement of said rights had been left to Judiciary in terms of Arts. 184(3) & 199 of the Constitution and the relevant law.

Constitution made it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances and this was a legal obligation assigned to the Judiciary

Judiciary was called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, and to do so, it had to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances, and also had to be strong and independent enough to dispense justice fairly and impartially.

Constitution made it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances and this was a legal obligation assigned to the Judiciary

Judiciary was called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, and to do so, it had to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances, and also had to be strong and independent enough to dispense justice fairly and impartially.

Importance of the independence of the judiciary could not be minimized and neglected because there could be no democracy without basic human rights and fundamental freedoms as its foundation and there could be no protection and enforcement of human rights and fundamental freedoms without the existence of an independent judiciary.

Executive Magistracy setup pursuant to laws under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, was not under the supervision and control of High Court

Government and not the High Court had the power to appoint, transfer, discipline, remove and grant powers to Executive Magistrates

Such Executive Magistrates were not under the supervision and control of High Court

Fair trial was deemed to be vitiated, if judicial functions were given to Executive and its officers and independence of judiciary could not be secured if the Executive was made a part of the Judiciary

Person would be deprived of a fair trial and due process if he or she was tried before an Executive Magistrate

Constitutional requirements of fair trial and independence of judiciary, held, were contravened by Code of Criminal Procedure (Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010.

Petitioners were District and Sessions Judges who were appointed as Judges of Accountability Courts for a period of three years on contract

After issuance of National Judicial Policy, contract of petitioners were terminated pre-maturely on their retirement

Plea raised by petitioners was that National Judicial Policy referred to the members of superior judiciary only

Validity

Authorities in compliance of National Judicial Policy issued termination letter in question

Petitioners were not retired Judges of Superior Judiciary and were retired Judges of District Judiciary but authorities wrongly treating petitioners retired Judges of Superior Judiciary terminated petitioners contract of service prematurely

Petitioners were awarded three years contract under S.5-A(3) of National Accountability Ordinance, 1999, commencing from their initial appointment, when they were members of District Judiciary and after their retirement from District Judiciary

Petitioners were not retired members of Superior Judiciary and as such National Judicial Policy was not applicable to them

High Court in exercise of Constitutional jurisdiction declared the notification illegal and without lawful authority

Petition was allowed accordingly.

Supreme Court is the final arbiter of disputes in order to maintain check and balance and for these reasons, the independence of judiciary has been guaranteed and the very Preamble of the Constitution provides that the "People of Pakistan and the independence of judiciary shall be fully secured"-Judiciary cannot compromise at any cost its independence, as guaranteed under the Constitution, as such compromises would lead the Nation to the situation of the last so many years.

Independence of judiciary is grand norm in the constitutional regime in almost all the modern time Constitutions including Constitution of Pakistan which cast mandatory and constitutional obligation on Government to ensure separation of judiciary from the executive

Independence of judiciary and the impartial judicial practice are interrelated concepts, one cannot sustain without the other

No judiciary can claim neutrality and independence unless it is insulated and detached from executive and administrative influence in all respect including in terms of appointment, tenure and security of service and in financial matters.

High Court is quite competent to direct the concerned quarters to implement Art. 175(3) of the Constitution in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so that Pakistan as nation rank and stand out amongst comity of nations having independent, impartial and competent judiciary for all times to come.

Both the Institutions are vital and indispensable for the people and they do not vie but rather complement each other so that people could live in peace and prosper in a society which was just and wherein rule of law reigns supreme

Institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate.

Petition arose out of the representation filed by the Judicial Officers of the Gilgit-Baltistan subordinate judiciary before the Chief Court Gilgit-Baltistan for an appropriate order for their upgradation in the manner in which the judicial officers of subordinate judiciary in the Provinces of Pakistan and in Azad Jammu and Kashmir had been upgraded

Chief Court forwarded their representation to the KA&NA Division, (KA&GB) Division) Government of Pakistan for appropriate action and on failure to get any decision for a considerable long time, they sought appropriate directions from Supreme Appellate Court by sending a copy of their representation which was treated as an application under Article 61 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009

District & Sessions Judge Gilgit had submitted the representation on behalf of whole Judicial Officers of Gilgit-Baltistan subordinate Judiciary seeking upgradation of the posts of judicial officers in Gilgit-Baltistan judiciary in the manner in which such posts had been upgraded in the four provinces of Pakistan and Azad Jammu & Kashmir, with effect from 1st January, 2008

Held, Gilgit-Baltistan, was part of Pakistan and by following Judicial Policy enforced in Pakistan, judiciary of Gilgit-Baltistan would certainly be benefited and the disparity in the standard of Judicial Service of Gilgit-Baltistan would certainly be removed which would advance the cause of independent judiciary

Concept of independence of judiciary was not confined only to the person of judicial officers, rather judicial independence mostly depended on administrative and financial independence

Interference of executive in the affairs of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly could affect the independence of judiciary

Better service status with better terms and conditions, could ensure the independence of judicial officer to the expectation of a common man

Under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, the superior Judiciary of Gilgit-Baltistan had been placed at par with the superior Judiciary of Pakistan and on the basis of same principle, the subordinate judiciary in Gilgit-Baltistan must be treated at par with that of the subordinate Judiciary in the Provinces of Pakistan and it would be fair to follow the Policy of the High Courts in the Provinces of Pakistan regarding upgradation of judicial officers in the subordinate judiciary

With a view to remove the disparity in the status and standard of Judicial Service in Gilgit-Baltistan and to bring at par with the judicial service in the Provinces of Pakistan in the light of principle of fair and equal treatment, Supreme Appellate Court held that judicial officers of subordinate judiciary of Gilgit-Baltistan, would be entitled to the benefit of upgradation

Chief Court Gilgit-Baltistan, in exercise of powers conferred to it under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, would initiate the process of upgradation of judicial officers of the subordinate judiciary in the same manner as had been done by the High Courts in the Provinces of Pakistan within specified period.

Supreme Appellate Court, in the interest of independence of judiciary in Gilgit-Baltistan, issued directions to be complied with by the Government of Gilgit-Baltistan.

Supreme Appellate Court desired the Government of Gilgit-Baltistan to make judicial reforms and ensure independence of Judiciary for better administration of justice.

Constitution of Pakistan, 1973, proceeds on the premises of trichotomy of powers with Independence of Judiciary and its separation from Executive as one of its salient features

No statute or Rule or Regulation made under the Constitution can be interpreted so as to offend against the principle of Independence of Judiciary lest its very validity and constitutionality become doubtful

In matters relating to selection, appointments and promotions of members of judicial service the Independence needs to be guarded even more jealously.

Historical events recapitulated.