The Constitution of the Islamic Republic of Pakistan 1973 is the longest-surviving third constitution of the country though there have been occasional attacks and attempts on it by two military dictators: General Muhammad Ziaul Haq and General Pervez Musharraf.
Part VII of the Constitution headed “The Judicature” contains Articles 175 to 212 pertaining to the appointment of judges to the superior courts i.e. Supreme Court of Pakistan, High Courts of the provinces and Islamabad Capital Territory, their powers, jurisdiction and allied matters.
Appointment of the judges to the superior courts is made through the Judicial Commission of Pakistan, which was somehow mentioned in the print and electronic media some days back.
A meeting of the Judicial Commission of Pakistan was held sometime back for considering the appointment of some more judges to the Supreme Court of Pakistan. The meeting was not productive as such as there was no unanimity of views among the Commission members present. The Chief Justice of Pakistan, who heads the Commission, while inaugurating the New Judicial Year, had referred to the Commission deliberations. His remarks about a couple of members of the Commission were somehow not liked by two sitting worthy judges of the apex court and they wrote a letter to the Chief Justice of Pakistan; taking exception to his remarks about the conduct of some members of the Judicial Commission. The letter somehow also found its way to the print and electronic media. Hence, this article on the subject is based on the Constitutional provisions regarding judges of the superior courts of the country.
Article 175 A, sub-articles and clauses provide the appointment of Judges to the Supreme Court, High Courts of the provinces, Islamabad High Court and the Federal Shariat Court and the composition of the Judicial Commission thereon.
The Constitution empowers the President to appoint the most senior judge of the Supreme Court as the Chief Justice of Pakistan.
The Judicial Commission for appointment of Judges of the Commission, according to the constitutional provisions, consists of the Chief Justice of Pakistan as the Chairman, the four most senior judges of the Supreme Court; a former Chief Justice or a former Judge of the Supreme Court of Pakistan nominated by the Chief Justice of Pakistan in consultation with four member Judges for a term of two years; Federal Minister for Law and Justice; Attorney General of Pakistan, and a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years as the Members.
The Constitution empowers the President to appoint the most senior judge of the Supreme Court as the Chief Justice of Pakistan. The Commission is empowered to make rules for regulating its procedure..
For the appointment of Judges of a High Court, the Commission also includes the Chief Justice of the High Court to which the appointment is being made; the most senior Judge of that High Court; the Provincial Minister for Law and an advocate having not less than 15 years practice in the High Court nominated by the concerned Bar Council for a term of two years as the Members.
The Constitution has also provided that for the appointment of the Chief Justice of a High Court, the most senior Judge mentioned above will not be a member of the Commission and also provided further “if for any reason the Chief Justice of a High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that, to be nominated by the Chief Justice of Pakistan in consultation with the four Member Judges of the Commission.”
For the appointment of Judges of the Islamabad High Court, the Commission will also include the Chief Justice of the Islamabad High Court and the most Senior Judge of that High Court and the most senior judge of that High Court as the members, provided that for the initial appointment of the Chief Justice and the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts will also be the members of the Commission. .
For the appointment of the Judges of the Federal Shariat Court, the Commission will also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members.
The Commission, by a majority of its total membership, will nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat as the case may be.
The Parliamentary Committee itself will consist of four members from the Senate, and four members from the National Assembly provided when the National Assembly stands dissolved, the total membership of the Parliamentary Committee will consist of the members from the Senate only. Members will be from treasury and opposition benches and nominated by the Leader of the House and the Leader of the Opposition respectively. The Parliamentary Committee, on receipt of a nomination from the Judicial Commission, may confirm the nominee by a majority of its total membership within 14 days; failing which the nomination shall be deemed to have been confirmed. In case the nomination is not confirmed, the Commission will send another nomination.
The Parliamentary Committee will send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who will then forward the same to the President. Commission of the superior courts, their powers, jurisdiction etc., may be dilated upon some other time, please.
The writer is a Lahore-based freelance journalist, columnist and retired Deputy Controller (News), Radio Pakistan, Islamabad and can be reached at zahidriffat @gmail.com