Appointment of Judges

2016 CLC 25 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Arts. 175-A & 199Constitutional petitionAppointment of JudgesParliamentary Committee, role of

Petitioners were High Court Bar Associations and dispute pertained to non-confirmation of two Additional Judges of High Court

Petitioners assailed subsequent notification whereby earlier notification dated 26-4-2014 was withdrawn and confirmation of two judges was declined

Validity

Parliamentary Committee had no authority to consider or approve appointment, extension of tenure or confirmation of an Additional Judge at its own unless the name of such person was duly recommended by Judicial Commission of Pakistan for such purpose

Names of Judges in question were not approved for confirmation or extension by Judicial Commission of Pakistan, therefore, the decision taken by Parliamentary Committee in relation to said two Additional Judges, recommending extension of their tenure for one year to the President of Pakistan was ab initio without jurisdiction and of no legal effect

Notification No. F.6 (1)/2012.ALL, dated 26-4-2014 issued by Federal Government, giving effect to the decision of Parliamentary Committee, extending tenure of two Additional Judges for a period of one year, was without lawful authority

Earlier notification was validly and properly withdrawn by subsequent notification dated 26-4-2014

Decision of Judicial Commission of Pakistan, either unanimous or by majority of its members relating to evaluation of caliber, competence, legal acumen and overall suitability of a nominee for appointment as a Judge of a Constitutional Court was not justiciable by any forum, including High Court by invoking Art.199 of the Constitution

High Court declined to interfere in the matter

Petition was dismissed in circumstances.

2012 PLD 42 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 43(2-A)High Court of Azad Jammu and KashmirAppointment of JudgesProcedurePresident to consult Chief Justice of High Court and Chief Justice of Azad Jammu and KashmirFailure/delay in appointment of permanent Chief Justice of High CourtConsultation of the President with Acting Chief Justice of High Court in such circumstancesScope

Where Chief Justice of the High Court had been elevated as Judge of the Supreme Court, the next senior Judge who had expectancy of becoming a permanent Chief Justice was not appointed as permanent Chief Justice but was appointed as Acting Chief Justice, and was left to work in the same capacity till his retirement, then the President had two options; either he could leave the post vacant or to consult the Acting Chief Justice

If the permanent Chief Justice of High Court was not appointed in a reasonable time, then the President had no option except to consult the Acting Chief Justice for the purpose of appointment of Judges

Consultation made by the President in such circumstances with the Acting Chief Justice could be termed as a valid consultation

In the present case, Acting Chief Justice of High Court was appointed in October, 2006 and remained working in the same capacity till his retirement in December, 2009

Azad Jammu and Kashmir Council which had to issue advice to the President for appointment of permanent Chief Justice failed to perform its constitutional duty

Since there was no permanent Chief Justice, the requirement of the Constitution was that the President should have consulted the Acting Chief Justice of the High Court, which would have been valid consultation

Appeals were disposed of accordingly.

2012 PLD 42 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 43(2-A)High Court of Azad Jammu and KashmirAppointment of JudgesProcedureConsultationOpinion of Chief Justice of Azad Jammu and KashmirPreferenceScopeOpinion of the Chief Justice of Azad Jammu and Kashmir had to be preferred

Where the Chief Justice of Azad Jammu and Kashmir did not think that a person was suitable to be appointed as Judge of the High Court, such person could not be considered for appointment as a Judge.

2012 PLD 42 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 42(4) & 43 (2-A)Constitution of Pakistan, Arts. 177 & 193High Court and Supreme Court of Azad Jammu and KashmirAppointment of JudgesProcedureWord "consultation"Connotation

'Consultation' occurring in Ss. 42(4) and 43(2-A) of Azad Jammu and Kashmir Interim Constitution Act, 1974 was used in similar sense as used in Arts. 177 and 193 of the Constitution of Pakistan

Consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint or arbitrariness or unfair play

Principles laid down by the Supreme Court of Pakistan in the case of Al-Jehad Trust v. Federation of Pakistan [PLD 1996 SC 324] were fully applicable in case of the appointments of Judges and Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir.

2012 PLD 42 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 42(4), 43(2-A) & 7Supreme Court and High Court of Azad Jammu and KashmirAppointment of JudgesProcedureAdvice of Prime MinisterRelevancy

Advice of Prime Minister under section 7 of Azad Jammu and Kashmir Interim Constitution Act, 1974, was not relevant for the purpose of appointment of Judges of High Court and Supreme Court of Azad Jammu and Kashmir.