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MPs body failed to perform its functions: SC

22 March, 2011

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ISLAMABAD: The Supreme Court (SC) on Monday, while issuing the detailed judgment on the petitions against the Parliamentary Committee’s decision of rejecting extension in the service of six additional judges of the high courts, recommended by the Judicial Commission, held that the decisions of the Parliamentary Committee were subject to a judicial review by the apex court.

Earlier on March 4, a four-member bench of the apex court, headed by Justice Mahmood Akhtar Shahid Siddiqui, in its short order, had nullified the Parliamentary Committee’s decision of rejecting one-year extension to six additional judges of Lahore and Sindh high courts and directed the federal government to issue a notification, giving them one-year extension.

The Parliamentary Committee had rejected Judicial Commission’s recommendations to give one year extension to the Lahore High Court additional judges — Justice Muhammad Yawar Ali, Justice Syed Mazhar Ali Akbar Naqvi, Justice Mamood Rashid Sheikh and Justice Muhammad Farrukh Irfan Khan and the Sindh High Court judges Justice Tasnim Aslam and Justice Salman Hamid.

On Monday, an 86-page detailed judgment, authored by Justice Mahmood Akhtar Shahid Siddiqui, held that the petitions were maintainable under Article 184(3) since they did involve issues of public importance and enforcement of fundamental rights.

“The principle laid down by the apex court for constitutional interpretation, Article 175 allowed the apex court to review the decisions of the Parliamentary Committee,” says the detailed verdict.

It said under the well-understood principles of judicial review, the decisions of the committee were based on an erroneous understanding of the law and the Constitution since these decisions were taken without lawful authority and had no legal effect.

It said the differences of opinion between the Commission and the Committee, in this context, cannot be seen as adversarial turf-wars between the two bodies or as matters of prestige as both the bodies have the common aim of ensuring that the will of the people of Pakistan to establish an order wherein the independence of the judiciary is fully secured, which is an objective set out in the Constitution itself is accepted as a command of the people and is implemented, both in letter and spirit with due humility and sincerity.

The detailed verdict noted that the Judicial Commission and the Parliamentary Committee are two limbs of one constitutional mechanism, created by the newly added Article 175A and both of them owe their existence to Article 175A and not to the provisions relating to the Legislature or the Executive in the Constitution.

It said any authority, created under a constitutional provision, is bound to act within its specified mandate as per Article 4 of the Constitution, thus here is no immunity from judicial scrutiny reserved for the Committee under the Constitution, and Article 69 has no application in the instant case, and it was also not claimed by the Federation.

It said Article 175A (16) further cements the intention that the committee was not to have any connection or even semblance of relevance to the Legislature or any form of parliamentary attribute. It was meant simply to be a committee working under the mandate of Article 175A, owing its existence to the said provision of the Constitution. Thus, its members, even if they are parliamentarians, are neither required nor permitted to participate in the proceedings of the committee in their legislative capacity.

“We are unable to see how the technical expertise, judged by a commission, comprising people having spent decades in the legal field, could be better judged or worse, reversed by the Parliamentary Committee. If this was intended by the legislature, then there was simply no need to even constitute a Judicial Commission,” the verdict said.

It said Article 175A itself has not provided for the chief justice of a high court to have any special role in the appointment process, and he is just another member of the Judicial Commission, and he has merely been provided the role to initiate the nominations. His duty is to initiate and send the nominations to the chairman of the Judicial Commission. This act, of initiating and sending nominations, cannot be taken to be the “recommendation” itself, but is rather to be considered as an act of mere procedure. This is so because the whole object of the new legislation is to take away the powers of one person and make the process a collective effort. Even if a chief justice of the high court is of the view that certain persons are not fit to be judges of the high court, it is possible that the Judicial Commission, by a majority, may come to the conclusion that they are and thus make such recommendation to the committee.

These recommendations would be valid and in accordance with the letter and spirit of Article 175A, it added.

It said the technical evaluation of a person’s calibre as judge has to be made by the commission and once evaluated, the recommendations of the commission are to be looked as one. The views of the individual members of the commission thus no more exist before the committee.

What the commission has already assessed and held cannot be overturned on the basis of a dissenting view, note or discussion of any individual member. If this was allowed, it would render the whole working of the Judicial Commission as futile and make it nugatory under the Constitution.

The Parliamentary Committee, on receipt of a nomination from the Commission, can either confirm the nominee by a majority of its total membership within 14 days, failing which the nomination shall be deemed to have been confirmed, or reject the nomination on grounds falling within its domain for very strong reasons which shall be justiciable.

It said the committee has tried to assume the jurisdiction of the Commission, there is no option but to come to the conclusion that the committee failed to perform its functions in terms of Clause 12 of Article 175A. The consequence of this failure has been prescribed by the Constitution itself.

The Committee must act within a period of 14 days of receiving the nominations, “failing which the nomination shall be deemed to have been confirmed.” So, while in any other case of failure to exercise jurisdiction, we might have been required to send the issue back to the authority for consideration in accordance with law. Here the Constitution leaves us with no such option because of a deeming provision.

The failure of the committee to perform its functions in accordance with its mandate results in the nomination “deemed to have been confirmed”. In such circumstances, we are inclined to issue a direction to the Federation to notify the appointments on the recommendations received, in accordance with Article 175A, within a period of 14 days, the detailed verdict said.

The role of a Parliamentary Committee is simply to examine such legislation or other proposed parliamentary action. It is parliament alone, which is empowered to pass legislation or exercise such functions, which the Constitution entrusts to it.

Thus, a Parliamentary Committee as properly understood in our constitutional scheme, simply facilitates parliament in the performance of its legislative and constitutional functions.

In his additional note, Justice Jawwad S Khawaja said: “I would like to refer to Articles 28 and 251 of the Constitution. These provisions highlight the constitutional imperative of promoting languages other than English. In order to fulfill this need, I have made a humble attempt that a gist of the court’s opinion is made accessible to a wider section of those who are unable to understand the English language, thus I wrote it in Urdu as well.”

End.

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