STUDY OF THE CONSTITUTIONAL INDEPENDENCE OF
THE SUPERIOR JUDICIARY IN PAKISTAN.
Amanullah Shah,
Law College, Gomal University,Dera Ismail Khan, NWFP, Pakistan.
ABSTRACT:
The First Constituent Assembly of Pakistan passed a resolution in March 1949 called the Objectives
Resolution. This Objectives Resolution established amongst other ideals “the independence of the Judiciary
shall be fully secured”. The Objectives Resolution remained a preamble to all Constitutions of Pakistan. It
has been made an enforceable part of the Constitution in 1985 under newly inserted Article 2-A. The
constitutional independence refers to the way in which the judiciary is constitutionally structured. This
paper examines the constitution of Pakistan whether it provides and secures independence of judiciary in
Pakistan. The irony is that the first danger to the constitutionally guaranteed independence of the judiciary
is from within the Constitution itself. There are certain provisions of the Constitution of 1973 which are in
clash with the Objectives Resolution of 1949 and are detrimental to judicial independence,
Introduction:
Constitution in 1985 under newly
The First Constituent Assembly of
inserted
Pakistan passed a resolution in
provides that the principles and
March 1949 called the Objectives
provisions
Resolution wherein the founding
Objectives Resolution are made
fathers of Pakistan resolved to
substantive
frame
Constitution and shall have effect
a
newly
Constitution
independent
Pakistan.
Resolution
This
for
the
state
of
Article
2-A,
set
out
part
which
in
of
the
the
accordingly.
Objectives
established
amongst
Here the focus is to study the
other ideals “the independence of
provisions
the
related to the Judiciary whether
Judiciary
secured”.
shall
The
be
fully
Objectives
they
are
of
the
Constitution
consistent
in
the
principle
to all Constitutions of Pakistan
Objectives
but was not enforceable as it was
“fully securing the independence
not
the
of Judiciary”. Articles 177, 179,
Constitutions. It was made an
180, 181, 182, 193, 195, 196,
enforceable
197,
part
part
of
of
the
200,
down
the
Resolution remained a preamble
substantive
laid
with
Resolution
203C,
that
of
is
the
Constitution
of
Pakistan
are
discussed.
Under Article 203-C the Judges
1:
including the Chief Justice of the
Appointment of Judges to
Federal
the Superior Courts:
Judges
including
Court
are
Chief
appointed by the President for a
Justices of the Supreme Court,
term of three years which may be
High Courts and Federal Shariat
extended
Court
Article
are
the
Shariat
appointed
under
further.
no
Under
this
consultation
with
Articles 177(I), 193(I) and 203C
anyone is provided. It means that
(4)
Constitution
sole and tremendous powers of
respectively. Under Article 177
appointing Judges to the Federal
(I) of the Constitution the Chief
Shariat Court are available to the
Justice of the Supreme Court to
executive under this article.
be
of
the
called
Pakistan
is
Chief
Justice
appointed
by
of
the
From the study of Articles 177,
President of Pakistan and other
193
Judges
questions emerge:
are
appointed
by
the
President after consultation with
and
203-C,
the
1. As Pakistan has adopted a
parliamentary
the Chief Justice of Pakistan.
following
government
system
under
of
the
According to Article 193(1) of
Constitution of 1973, the
the Constitution, a Judge of High
question is whether it is the
Court
the
discretionary powers of the
President after consultation with
President to appoint judges
the Chief Justice of Pakistan, the
of the Superior Courts or
Governor of concerned province
he is to act in accordance
and
with
is
the
appointed
Chief
concerned
High
Justice
Court
by
of
the
except
where the appointment is that of
the
advice
of
the
Prime Minister?
2. What is true import of the
the Chief Justice of the concerned
expression
“after
High Court.
consultation” under articles
177 and 193? Whether the
advice of the Prime Minister?
recommendations
the
Two Constitutional petitions on
consultees are binding on
the same issue about the same
the President?
time,
3. Whether
an
of
acting
Chief
were
Supreme
also
Court
filed
under
in
the
Article
Justice is included in the
184(3) by Wahab-ul Khairi on
list of consultees?
behalf of Al-Jehad Trust and by
4. Who should be appointed
Zafar Iqbal Chaudhry, seeking a
the Chief Justice of a High
declaration that the President was
court?
the appointing authority for the
5. Who should be appointed
the
Chief
Justice
of
Pakistan?
and that the advice of the Prime
Minister under Article 48(1) of
6. In case of difference of
opinion
judges of the Superior Judiciary
among
the Constitution was not required.
the
Article 48(I) of the Constitution
consultees, whose opinion
envisages that in exercise of his
shall
functions, the President shall act
have
primacy
and
shall prevail?
7. Who
will
in accordance with the advice of
initiate
the
the cabinet or the Prime Minister.
process of appointment of a
Clause (2) of Article 48 must be
judge of a High Court?
mentioned which says that not
withstanding anything contained
The first question came before
in clause (I) the President shall
the Supreme Court in a reference
act in his discretion in respect of
sent by the President in 1996
any
under
empowered by the Constitution to
Article
186
of
the
Constitution for seeking opinion
from
the
court
whether
matter
for
which
he
is
do so.
the
President is permitted to appoint
The Supreme Court held in the
judges of the Superior Courts in
instant case known as Al Jehad
his sole discretion or only on the
Trust Vs. Federation of Pakistan
1997 that there is no conflict
writing
between Article 48 and Articles
President/Executive”.
177 and 193 of the Constitution.
judgment of Justice Ajmal Mian,
The
court
the
As
per
that
the
if the executive disagrees with
by
the
the views of the Chief Justice of
advice of the Prime Minister in
Pakistan and Chief Justice of the
respect of appointment of judges
concerned High Court, it has to
of the superior judiciary under
record strong reasons which will
Articles,
be justiciable. He also held that a
President
concluded
by
was
177
bound
and
193
of
the
Constitution.
person found to be unfit by the
Chief Justice of the High Court
Question Nos2, 3 and 4 were
concerned and the Chief Justice
discussed by the Supreme Court
of Pakistan for appointment as a
in Al Jehad Trust Vs. Federation
judge of a High Court or by the
of
Chief Justice of Pakistan for the
Pakistan
known
as
1996,
Judges’
commonly
Chief
judgeship of the Supreme Court
Justice Sajjad Ali Shah concluded
can not be appointed as it will not
his opinion in the said case, in
be a proper exercise of power
these
under Articles 177 and 193 of the
words
supposed
“Consultation
to
be
meaningful,
is
effective,
Constitution.
purposive,
consensus-oriented,
room
case.
for
leaving
complaint
no
In respect of the issue whether an
of
acting Chief Justice is included in
arbitrariness or unfair play. The
the
opinion of the Chief Justice of
Supreme Court held in the same
Pakistan
of
case that an acting Chief Justice
High Court as to the fitness and
is not a consultee for the purpose
suitability
of
a
for
of Articles 177 and 193 of the
judgeship
is
entitled
be
Constitution as the appointment
accepted in the absence of very
of acting Chief Justice is a stop
and
Chief
Justice
candidate
to
sound reason to be recorded in
list
of
consultees,
the
gap
arrangement
for
a
short
period not more than 90 days.
Resolving
the
issue
of
the
appointment of the Chief Justice
of a High Court (i.e. the fourth
question
Court
above)
observed
the
Supreme
that
the
most
senior Judge of a High Court has
a
legitimate
expectancy
to
be
considered for appointment as the
Chief Justice and in the absence
of any concrete and valid reasons
to
be
recorded
by
the
President/Executive,
he
is
entitled to be appointed as such
in the Court concerned.
The last two questions (i.e. 6 t h
and 7 t h above) still call for
clarification and interpretation of
the relevant provisions of the
Constitution. There are examples
of difference of opinion among
the
consultees
in
the
constitutional history of Pakistan,
yet so far no proper attention has
been given to such constitutional
and legal complexities. When
Justice Cornelius was the Chief
Justice of Pakistan he often did
not agree with recommendations
of the Chief Justice of the West
Pakistan High Court (Rizvi,
2005).
Again
rulings/verdicts/interpretations of
the Supreme Court in the above
referred three cases are, so far,
only rulings of the court and not
formally
The fifth question in respect of
the
appointment
of
the
Chief
Justice of Pakistan was answered
again by the Supreme Court in
another
important
case
namely
Malik Asad Ali Vs. Federation of
Pakistan, 1998. As per ruling of
the Supreme Court, the senior
most judge of the Supreme Court
is to be appointed as the Chief
Justice
of
Pakistan
the
unless
some solid or strong reason.
for
incorporated
into
Constitution through amendment.
Keeping in view the track record
of Pakistan, it is feared that these
rulings can easily be disregarded,
at any time, by the Executive or
even quashed by the court itself.
That is why one can not say with
certainty that the constitutional
questions relating to the Superior
Judiciary have finally been solved
or cleared by the Supreme Court.
The judgments of the Supreme
Court in the two cases (Judges
Case and Malik Asad Ali’s Case)
Court Justice Falak Sher to be
have already been violated by the
appointed as acting chief Justice
Executive
while
of
appointments
to
making
the
Superior
Lahore
federal
High
Court.
government
on
The
the
contrary appointed the next senior
Judiciary.
judge, Justice Allah Nawaz as
The short order of the Supreme
acting Chief Justice of Lahore
Court in the Judges’ case (Al
High Court. The appointment of
Jehad
justice Allah Nawaz as acting
Trust
V.
Federation
of
Pakistan 1996) was announced on
Chief
March
through
20,
1996
disregarded
by
and
the
it
was
Executive
Justice
a
11757/99
was
writ
in
challenged
petition
the
Lahore
no:
High
within 25 days. The government
Court on the ground that the
elevated
principle of seniority was not
Zahid
Justice
to
Justice
Nasir
Supreme
Mamoon
appointed
as
Aslam
Court
and
followed as he was number 3 at
Kazi
was
the seniority list. It was further
Chief
Justice
of
alleged
that
the
impugned
Sindh High Court on April 14,
appointment was also against the
1996, without the knowledge and
judgments of the Supreme Court
approval of the Chief Justice of
given in the Judges’ case and
Pakistan (Mian, 2004).
Malik
Asad
Ali’s
case.
The
petition was dismissed by a single
The Court itself deviated from its
bench of the Lahore High Court,
former rulings in the said cases in
with
a very short period of time. In
rupees. The bench held that it is
June 1999, Justice Rashid Aziz
only a convention and not a legal
the Chief Justice of Lahore High
requirement that the senior most
Court was going on leave, the
judge
Chief
Pakistan
appointed as acting Chief Justice
recommended the name of the
of the concerned High Court. The
senior most judge of Lahore High
court further held that since there
Justice
of
costs
of
of
a
fifty
High
thousands
Court
be
was no clear provision in article
appointment
196 that only a senior most judge
Superior Courts under Articles
of High Court shall be appointed
177 and 193 and/or under any
an acting Chief Justice of a High
other
Court therefore the President can
exercised by the President in his
exercise his discretion.
discretion but be exercised in
One can not find it easy to agree
accordance to the advice of the
with this interpretation/decision
Prime
of the bench of Lahore High
48(I) of the Constitution.
of
Articles
Minister
judges
can
under
of
not
the
be
Article
Court as it is inconsistent with
the principles laid down by the
Again on December 26, 2001, one
Supreme
judge from Peshawar High Court
Court
in
the
above
referred two judgments (i.e. the
and
Judges’
Asad
High Court were appointed as
Ali’s case) wherein the Supreme
judges of the Supreme Court. The
Court held that the senior most
validity of the appointment of the
judge both in a High Court and
three
Supreme Court shall be appointed
High Court was challenged in the
as Chief Justice, even though,
Supreme
there is no such clear provision in
184(3) of the Constitution by four
articles
the
different petitioners. The common
the
ground in all these petitions was
assertion of Justice Ehsan-ul-Haq
that the doctrine of seniority was
that
acting
not followed in the appointment
Chief Justice is a discretionary
of the judges of the Supreme
power of the President is not in
Court despite the longstanding
conformity with the judgment of
convention in this regard and the
the full bench of the Supreme
two important judgments of the
Court in the second Al Jehad
Supreme Court in Al Jehad Trust
Trust case in 1997. The Supreme
case, 1996(i.e. Judges’ Case) and
Court held in that case that the
Malik Asad Ali’s case 1997. The
case
193
Constitution.
and
and
Malik
177
Secondly,
appointment
of
an
of
three
judges from
judges
from
Court
the
under
Lahore
Lahore
Article
names of the three judges of the
of
Lahore High Court elevated to the
Incidentally the same argument
Supreme Court appeared at serial
was
No.3, 4 and 13 of the seniority
Ali’s
list of the judges of the Lahore
Justice Sajjad Ali Shah, that the
High Court. These petitions were
decision in the judges’ case was
jointly heard under title ‘Supreme
not
Court
Vs.
Ali’s case as there was difference
Federation of Pakistan 2002’ by a
between the appointment of the
full bench of the Supreme Court
Chief Justice of a High Court and
consisting
the
Bar
Association
of
five
judges
the
Supreme
forwarded
case
Chief
in Malik
by
applicable
Court.
the
in
that
counsel
Malik
Justice
Asad
of
of
Asad
Pakistan.
including the Chief Justice of
However
Bench
Pakistan and decided on April 10,
Supreme Court refused to accept
2002.
this
argument
or
of
the
distinction
between the appointment of the
Despite the fact that principle of
Chief Justice of High Court and
seniority was applied in Malik
of the Chief Justice of Pakistan.
Asad Ali’s case on the basis of
The amazing irony is that the
the Judges’ case and for the same
Chief Justice of Pakistan, Justice
reason
Justice
Irshad Hassan Khan, who headed
Sajjad Ali Shah, the former Chief
the Bench hearing the petitions
Justice of Pakistan, was declared
wherein the appointments of three
invalid.
judges were challenged, was also
appointment
But
the
of
principle
of
seniority was not applied in this
a
case
decided Malik Asad Ali’s case. It
and
the
Supreme
Court
member
of
the
that
refused to accept the arguments
becomes
of the petitioners on the ground
know that he was the leader of
that
the
there
was
a
difference
further
Bench
Bench
of
surprising
three
judges
to
at
between the appointment of the
Quetta that issued a temporary
Chief
injunction
Justice
of
the
Supreme
Court and appointments of Judges
restraining
in
September
Justice
Sajjad
1997,
Ali
Shah to function as Chief Justice
the status of High Court judge.
of Pakistan on the analogy of
This provision was inherited from
judges’ case.
the Government of India Act 1935
and
was
incorporated
in
all
Having a power-hungry executive
Constitutions of Pakistan. Many
who feels no pain in exploiting
civil servants had been inducted
the weak points of the provisions
in the Superior Judiciary since
of law, even of Constitution and
independence. Some outstanding
such honorable judges of Superior
judges of the superior judiciary
Courts who can easily make and
belonged to the group of civil
unmake
any
possible
rule,
the
only
service,
to
have
Cornelius,
provisions
clear,
way
constitutional
unambiguous
is
and
complete
in
such
as
Justice
Justice
Rustam
Kayani, Justice Saad Saud Jan,
Justice Shafi Ur Rehman, Justice
themselves.
K.M.A
Furthermore, clause (2) (b) of
Zafarullah Chaudhry. Somehow,
Article 193 of the Constitution
no appointment has been made
provides that a member of civil
from the civil service under this
service
a
provision of the Constitution in
district judge for a period not less
the recent past. The reason for the
that
non-compliance
having
three
served
years,
as
may
be
Samdani
and
Justice
or
non-
appointed as a judge of a High
observation of this provision is
Court. In the past civil servants
not
on the executive side often came
provision goes against the basic
to
concept of separation of powers
have
Criminal
judicial
justice
administered
at
experience.
was
often
lower
courts
known.
this
and is also detrimental to the
independence
jointly by the executive and the
Furthermore
judiciary. A civil servant could
Article
be appointed a district judge for
practiced
three years and then elevated to
Anyhow
of
clause
193
after
judiciary.
(2)
should
(b)
of
not
be
separation
of
judiciary from the executive at
Courts
are
appointed
under
the lower level since 1996.
Article 197. At any time when the
2: Appointment of Acting Chief
office of a judge is absent or is
Justices:
unable to perform the function of
the
his office due to any other cause,
Chief
the President may under Article
Justice of Pakistan. Whenever the
181 of the Constitution appoint a
office of the Chief Justice of
judge of a High Court as acting
Pakistan
the
judge of the Supreme Court if he
President is to appoint “the most
is qualified for appointment as a
senior
the
judge of the Supreme Court as per
Supreme Court to act as Chief
Article 177 of the Constitution. If
Justice of Pakistan”. Ironically
at any time it is not possible to
weightage
Article
180
appointment
provides
of
Acting
becomes
of
seniority
the
has
for
for
vacant,
Judges
of
given
to
hold or continue a sitting of the
appointment
of
Supreme
been
Court
for
want
of
Acting Chief Justice of Pakistan
quorum or for any other reason
but
Chief
and it is necessary to increase
Justice of Pakistan under Article
temporarily the number of judges
177. It is again interesting that no
of the Supreme Court, ad hoc
seniority condition is laid down
judges/judge may be appointed
for appointment of acting Chief
under
Justice of a High Court under
Constitution.
not
for
permanent
Article
182
of
the
Article
182
Article 196 of the Constitution.
The
3:
Appointment of Acting, Ad
hoc and Additional judges:
Articles
181
Constitution
and
182
provide
of
for
the
ad hoc judges in the Supreme
respectively,
additional
judges
in
whereas
the
of
provides different grounds than
the grounds under Article 181 of
the
appointment of acting judges and
Court
language
High
the
Constitution.
The
grounds
under Article 181 are vacancy in
office and inability to perform the
functions
under
whereas
Article
the
182 is
ground
want of
quorum and necessity to increase
Article 197 an additional judge of
temporarily the number of the
a High Court may be appointed by
judges of the Supreme Court. The
the President under the following
language
circumstances:
of
the
both
Articles
indicates that they provide for the
i.
When the office of a judge
appointment of judges to meet the
of a High Court is vacant;
temporary
or
situation.
Unfortunately the letter and sprite
ii.
When a judge of a High
of these constitutional provisions
Court is absent from or is
were not correctly followed or the
unable
same were for the past many
functions of his office due
years,
to any other cause; or
consciously
misapplied
misused
and
or
permanent
iii.
to
perform
the
When for any other reason,
vacancies were usually filled by
it is necessary to increase
acting/ad hoc appointments who
the number of judges of a
continued for years as temporary
High Court.
judges. The Supreme Court of
Pakistan consists of 17 permanent
The
judges
appointment
including
the
Chief
qualifications
an
judge
many
similar to those for appointment
judges
seven
in
against
the
10
including
acting/ad
Supreme
permanent
the
Chief
hoc
Court
of
a
Article
additional
Justice. In 1995 there were as
as
under
as
for
permanent
197
judge
are
under
judges
Article 193. An additional judge
Justice
is appointed for such period as
the
(Khan, 1998).
President
may
determine.
After the lapse of such period, the
Article 197 of the Constitution is
President may extend the period.
more
the
In case the period is not extended
independence of the judiciary and
or the appointment is not made
more
under Article 193, the additional
detrimental
misapplied
and
to
misused
than Articles 181 and 182. Under
judge shall relinquish the charge
happened in practice is that the
of his office.
true purpose of Article 197 has
never been carried into effect.
It may be noted that an additional
judge appointed under Article 197
The practice of appointment of
and permanent judge of a High
acting or ad hoc judges in the
Court
appointed
193,
as
for
jurisdictions,
under
Article
Supreme
as,
powers
judges
functions,
Court
and
the
High
in
additional
Courts
is
pay,
detrimental to independence of
privileges, duties and obligations
judiciary. It can be said without a
are concerned, are at par; the only
fear of dispute that successive
different is of the service tenure.
governments of Pakistan have, in
the
The
unfortunate
and
words
of
Venkataramiah,
Justice
been
E.S
“virtually
unconstitutional practice that has
playing with the courts” (Huq,
been keenly followed by all the
1997).
governments is to treat Article
197 as the gateway through which
every judge of a High Court has
to
pass
before
being
made
permanent. Almost all judges of
the High Court before they were
made permanent had to get a
number of extensions for short
terms.
The
additional
judges
continued entering the superior
judiciary
with
a
legitimate
expectation that they would not
have to go back on the expiration
of their term but they would be
confirmed
ultimately.
What
4:
Retirement
Age
of
the
Judges of the Superior Courts:
Another constitutional provision
needing
serious
attention
in
respect of the independence of
the
judiciary
is
the
disparity
between the retirement ages of
the judges of the Supreme Court
and judges of the High Courts.
According to Article 179(1) of
the Constitution, the retirement
age for a judge of the Supreme
Court is sixty five years whereas
for a judge of a High Court it is
sixty two years under Article 195
(1) of the Constitution. It goes
President of Pakistan without the
without saying that a judge of a
consent of the concerned judge
High
his
and without consultation with the
retirement age naturally may wish
Chief Justice of Pakistan and the
to be appointed as a judge of the
Chief Justice of the concerned
Supreme
High Court, provided that the
Court
nearing
Court
because
apart
from obvious honor and dignity
transfer
of such appointment , he can then
exceeding two years. The consent
get the period of his service and
of the concerned judge and the
official
consultation
facilities
extended
for
is
for
a
period
with
Justices
of
can
transfer is for a period of more
possibly make such a judge prey
than two years. Clause 4, of the
to this temptation and to the
same
allurements
judge of a High Court who does
an
opportunity
of
the
political
required
Chief
another three years. Availability
such
are
the
not
Article
the logic and rationale behind this
High Court under clause (I) shall
disparity between the retirement
be deemed to have retired from
ages of the judges of the Supreme
his
Court and High Courts. However
Article 200 of the Constitution,
this
the
the President might transfer a
retirement ages is not good for
judge of a High Court to another
and is, indeed, detrimental to the
High Court only with consent of
independence of the judiciary.
the concerned judge and after
between
Under
to
a
not
office.
transfer
that
the
executive. One cannot understand
disparity
accept
provides
if
the
another
original
consultation by the President with
5:
Transfer
of
High
Court
the Chief Justices of both High
Judges:
Under
the Chief Justice of Pakistan and
Article
200(1)
of
the
Courts. By Fifth Constitutional
Constitution a judge of a High
Amendment
in
Court
Zulfiqar
Ali
government,
the
another
may
be
High
transferred
Court
by
to
the
1976
during
Bhutto’s
condition
of
was
from time to time to keep the
dispensed with if the transfer was
judiciary docile and subservient.
for a period not exceeding one
The introduction of the provision
year at a time. The period of one
for transfer of a High Court judge
year was extended to two years
to another High Court without his
subsequently by President’s Order
consent
No.14 of 1985. Clause (4) of the
Amendment for one year, then
Article
incorporated
under President’s order No.14 of
again by the President’s Order
1985 for 2 years and so also
No.24
appointment
consent
and
200
of
consultation
was
1985.
The
last
two
under
of
the
a
Fifth
High
Court
President’s orders were issued by
judge to the Federal Shariat Court
the military regime of General
without his consent for the above
Zia.
period at the peril of his being
stand
retired,
in
case
of
his
transfer
or
The above amendments in Article
refusal
200 were challenged before the
appointment….
Sindh High Court by the Sindh
amendments/additions
High
militate against the concept of the
Court
through
its
Bar
Association
President
Sharaf
to
accept
….
are
the
which
independence
of
Faridi in 1989. It was contended
judiciary/separation of judiciary
that
as envisaged by the Constitution”
these
amendments
were
violation of the independence of
(PLD, 1989).
judiciary. The court observed that
the above mentioned amendments
However
militate against the concept of
declare the said provisions of the
independence
as
Constitution as ultra vires. The
the
court held in the following words:
Constitution itself. The court held
“The present cases do not involve
as under: -
the question of change in the
“The above amendments/additions
basic structure and framework of
in the Constitution were made
the
originally
of
judiciary
envisaged
by
the
court
Constitution
refused
as
to
the
aforesaid
constitutional protection to the
articles relating to judiciary can
services of the judges of the
not be said to have altered the
Supreme Court and High Courts.
amendments
in
the
basic structure of the Constitution
pertaining to the working of the
Thirdly in the presence of Article
judiciary.
It
not
200, as it is, the independence of
necessary
to
the
the judiciary cannot be “fully
is
therefore,
dilate
upon
above question any further. The
secured”
upshot of the above discussion is
Objectives
Resolution.
that we cannot declare any of the
provisions
are
Constitution
founding
vires
in
provision
the
instant
as
ultra
petitions”
as
envisaged
and
the
These
against
principles
Constitution
by
of
the
the
consequently,
should have been declared ultra
(PLD, 1989).
vires by the court.
One
can
very
disagree
with
justice’s
opinion
respectfully
the
learned
these
Article 203C was inserted by the
amendments can not be declared
military regime of General Zia in
ultra vires because they do not
1980
alter
the
(Amendment) Order 1980. This
the
Article provides for the Federal
working of the judiciary. It has
Shariat Court consisting of the
been observed by the court that
Chief
these amendments militate against
judges to be appointed by the
the concept of the independence
President. The term of the Chief
of
a
Justice and other judges shall be
the
for a period not exceeding three
the
Constitution
structure
of
pertaining
judiciary.
contradiction
that
6: Federal Shariat Court:
Isn’t
between
to
this
through
Justice
the
and
Constitution
seven
other
findings and rulings of the court?
years, but may be extended to
Secondly clause (4) of Article
such further term or terms as the
200 is in direct conflict with
President
Article 209 (7) which provides
President may appoint any judge
may
determine.
The
of a High Court, including an
Court, Justice Aftab Ahmad was
acting Chief Justice of a High
transferred from his office and
Court, as a judge of the Federal
appointed as an Advisor to the
Shariat Court without his consent
ministry for religious affairs by
and without consultation by the
General
President with the Chief Justice
Presidential Order in 1986. The
of the concerned High Court if
Honorable Justice did not accept
such appointment is for a period
the
not
years.
resigned. Justice Aftab Ahmad
According to clause (5) of the
himself stated: “the President is
same Article a judge of a High
empowered to assign any duty to
Court
accept
the Chief Justice or a judge of the
appointment as a judge of the
Federal Shariat Court without his
Federal Shariat Court shall be
consent” he added “the President
deemed
may upgrade the post of a peon
exceeding
who
two
does
to
have
not
retired
from
and
judgeship of the High Court.
Zia
new
through
a
appointment
appoint
a
and
former
Chief
Justice to that post”. He further
Under clause (4B) of Article 203-
said “in the presence of this law
C the President may at any time,
i.e. (4B) of Article 203C every
modify the term of appointment
judge of the Federal Shariat Court
of a judge of the Federal Shariat
remains under pressure of the
Court or assign any other office
Government.
or may require a judge of the
Federal
Shariat
Federal Shariat Court to perform
examine
whether
such
the
laws of the country are against
President may deem fit. In the
Islamic injunctions and if they
present context i.e. clause (4B) of
are,
this
Therefore
other
functions
Article,
the
term
as
judge
to
The
job
Court
the
of
the
is
existing
declare
them
in
presence
the
to
void.
of
includes the Chief Justice of the
provision of (4B) it appears the
Federal Shariat Court. A Chief
government wants interpretation
Justice
of
the
Federal
Shariat
of
Islamic
injunctions
as
it
yet been amended in the light of
the judgments of the Supreme
desires” (Rizvi, 2005).
Court. In the second case of AlArticle 203C provides sole and
Jehad Trust, the Supreme Court
tremendous
the
held that, the appointments of the
under
Chief Justice and the Judges of
Clause 4B of the said Article are
the Federal Shariat Court will be
the most outrageous and most
made by the President on the
detrimental to the independence
advice of the Prime Minister. In
of
the first case of Al-Jehad Trust
powers
President.
Provisions
judiciary.
powers
to
Such
under
sweeping
203C,
(Judges’ case) the Supreme Court
introduced by a military dictator,
observed that once a sitting Chief
make
Justice or a judge of a High Court
a
Article
mockery
independence
of
the
of
the
Judiciary.
is
appointed
in
the
Unfortunately our judicial history
Shariat
has witnessed that several Chief
susceptible under clause 4B of
Justices
Article
and
Judges
of
High
Court,
he
Federal
203C
detrimental
Shariat
tenure which is guaranteed by
because
they
his
actions
Courts were sent to the Federal
Court
to
to
becomes
security
of
Article 209 of the Constitution.
annoyed the Government.
Finding
Article
203C
of
the
The Supreme Court of Pakistan
Constitution to be irreconcilable
has imposed some checks upon
with
the tremendous powers of the
Supreme Court held that a Chief
President through rulings in two
Justice or a Judge of a High Court
important cases (i.e. Al Jehad
could not be transferred to the
Trust V Federation of Pakistan
Federal Shariat Court without his
1996
consent.
and Al Jehad Trust V
Federation of Pakistan
Article
209,
thereof
the
1997).
But constitutional provisions still
The judges of High Courts giving
exist and the Constitution has not
a decision which will annoy the
sitting Government, will certainly
provided
by
bear in their minds the fear of
through
the
victimization, at least transfer to
Council.
Article
209,
Supreme
i.e.
Judicial
another High Court under Article
200 of the Constitution or to the
Federal
Shariat
Court
under
Article 203C of the Constitution.
“It needs to be instilled in every
mind that where fear is, Justice
cannot be” in the words of Justice
Khanna. When judiciary is ceased
by fear in the decision of cases, it
7: Suggestions for Structural
Independence of the Judiciary:
The independence of the judiciary
has two aspects, that is, de jure
independence
Article
a
conflict
203C
(5)
and
be
deduced from legal documents;
and de facto independence which
means the degree of independence
get
is
can
that the courts factually enjoy. To
becomes demoralized.
There
which
between
Article
209(7) of the Constitution. Clause
de
jure
independence
for
judiciary in Pakistan amendments
in the Constitution of Pakistan
are suggested.
(5) of Article 203C provides that
if a judge of a high court is
appointed
as
a
judge
of
the
Federal
Shariat
Court
and
he
refuses
to
accept
such
appointment, he shall be deemed
to have retired from the High
Court.
Whereas
clause
(7)
of
Article 209, giving protection to
the services of a judge of the
Superior Courts, declares that a
judge of the Supreme Court or of
a
High
Court
shall
not
be
removed from office except as
Firstly,
to
achieve
the
independence of the judiciary and
to
have
efficient
judges
of
integrity, the whole system of the
judicial
appointment
overhauling.
appointment
The
of
needs
system
judges
is
of
of
paramount importance to ensure
independence
of
judiciary
because it is primarily the human
being that makes or mars the
institution.
The
judicial
appointment must be made more
competitive and more transparent.
appointment of judges including
The executive’s power to appoint
the Chief Justices of the superior
judges to the superior courts must
courts. It should make criteria for
be limited. The present system of
the selection of judges of the
judicial
not
superior courts. It should invite
provide any role to the bar. The
applications from the interested
effectiveness and importance of
candidates
the
and
judges of the superior courts. The
of
Chief Justice of Pakistan and the
the judiciary must be recognized
Chief Justices of the High Courts
and
must be appointed in accordance
appointment
bar
defending
it
does
in
preserving
the
independence
must
be
given
an
to
appropriate role. The prevailing
with
system and procedure of judicial
Commission.
appointments
should
need
drastic
be
appointed
recommendation
The
recommend
of
as
the
Commission
the
Chief
changes. A Judicial Appointment
Justices out of the three most
Commission is recommended to
senior judges of their respective
replace the existing system of
courts. The recommendation of
judicial appointments.
the Commission for appointments
of the judges including the Chief
The Commission should consist
Justices must be binding on the
of the Chief Justice of Pakistan,
executive.
two next senior judges of the
function should be limited only to
Supreme Court, the Chief Justices
issuing
of
Courts,
The parliament’s role should be
three/four retired judges of the
only to appoint the retired judges
Supreme Court to be appointed by
of the Supreme Court as members
the Parliament and two nominees
of the Commission. Judges of the
of the bar to be elected by the
High Courts be selected from the
advocates.
Commission
bar as well as from the lower
must have exclusive and final
judiciary. The strength of both
authority
groups in the superior judiciary
the
four
High
The
to
recommend
the
The
executive’s
appointment
order.
should be specified giving more
the senior most judge of a High
seats to bar.
Court must be appointed as an
acting Chief Justice of that High
The process of the selection of
Court
the judges of the High Courts
must be open. The names of the
Thirdly, Articles 181 and 182 of
persons to be appointed as judges
the Constitution provide for the
of
be
appointment of acting judges and
scrutiny.
ad hoc judges in the Supreme
the
High
advertised
Courts
for
Public
censure
helpful
in
must
public
is
good
selecting
judges
and
of
Court
respectively,
additional
Courts
integrity.
judges
are
in
whereas
the
appointed
High
under
Article 197. These Articles must
Secondly, Articles 180 and 196
be
dealing with the appointment of
vacancies of the judges in the
acting Chief Justice of Pakistan
superior courts must be filled
and acting Chief Justice of a High
with
Court
within
respectively
must
be
amended
and
permanent
a
permanent
appointment
specified
period.
amended as per the judgment of
Temporary appointment of judges
the Supreme Court in the Judges’
against permanent vacancies must
case. Appointment of acting Chief
not be allowed.
Justices
must
be
a
stop-gape
arrangement for a short period
Fourthly, disparity between the
not
month.
retirement ages of the Supreme
Furthermore Article 196 must be
Court Judges and the High Court
brought at par with Article 180.
Judges must be removed. Article
Article
the
195(1) of the Constitution must
senior most judge of the Supreme
be amended and the retirement
Court shall be appointed as an
age of a judge of a High Court
acting Chief Justice of Pakistan.
must be increased up to 65 years
So it is recommended that only
to
more
180
than
one
provides
that
bring
it
at
par
with
the
retirement age of a judge of the
whether it is in conformity with
Supreme Court.
the injunctions of Islam may be
performed by the High Court. So
Fifthly,
Article
200
must
be
amended not to allow transfer of
a
judge
another
of
a
High
High
Court
Court
the Federal Shariat Court must be
abolished.
to
without
consent of the concerned judge
and the Chief Justices of the
CONCLUSION:
The
conclusion
danger
Sixthly, the very rationale behind
the establishment of the Federal
Shariat Court and its utility are
questionable. This Court merely
duplicates the functions of the
existing superior courts and also
operates
as
a
check
on
the
sovereignty of Parliament. The
composition
of
the
particularly
the
Court,
mode
of
appointment of its judges and the
insecurity
of
their
detrimental
tenure
to
are
judicial
independence. This Court does
not
fully
meet
the
criterion
prescribed for the independence
of the judiciary, hence, is not
immune to pressure and influence
from
the
executive.
Its
sole
function i.e. to examine a law
study
of
the
constitutional provisions leads to
the
concerned High Courts.
foregoing
to
that
the
the
first
constitutionally
guaranteed independence of the
judiciary
is
from
constitution
within
itself.
constitution,
the
The
alongside
the
provisions ensuring independence
of
the
judiciary,
also
carries
provisions which can be misused
or misapplied by the executive
for
interfering
independence
of
with
the
the
judiciary.
There are also certain provisions
of the constitution relating to the
judiciary which are in clash with
each other. The constitution of
Pakistan
has
termed
contradictory
“an
been
correctly
internally
constitutional
instrument” (Newberg 1995).
In short the judiciary in Pakistan
4. Mian, Chief Justice (Retd) Ajmal:
is not based on sound foundation
2004, ‘A Judge Speaks Out’ Karachi,
of structural independence. One
Oxford
cannot
expect
behavioral
University Press, PP- 200-1.
judges
5. Newberg, Paula R: 1995, ‘Judging the
without structural independence
State’, New York, Cambridge University
of
Press,
independence
the
structural
from
judiciary.
the
To
achieve
independence
the
constitution needs amendment.
P- 27.
6. Rizvi, Justice Syed Shabbar Raza:
2005, ‘Constitutional Law of Pakistan’
2nd ed.
REFERENCES:
Stand for:
Lahore (Pakistan), Vanguard Books
(Pvt.) Ltd: P- 1317.
PLD -------- All Pakistan Legal
Decisions.
PLJ -------- Pakistan Law Journal.
VS. --------- Versus.
Public Documents:
I. The Constitution of Pakistan, 1973,
Articles 2-A, 177, 179, 180, 181, 182,
184, 186,
1. Huq, Ikram ul: 1997, ‘Appointment
of Additional Judges: A threat to
Independence of
Judiciary’ PLJ, P- 112
193, 195, 196, 197, 200, 203C.
II. The Objectives Resolution 1949.
III. The President Order No; 14, 1985
(Revival of the Constitution Order 1985)
2. Khan, Hamid: 1998, ‘Government
and Judiciary 1994-97: The Crisis of
State’ PLJ,
P- 66.
3. Khanna, Justice (Retd) H.R. 1985,
‘Judiciary in India and Judicial Process’,
Calcutta,
Ajoy Law House S.C. Sarkar & Sons
Private Ltd. P- 28.
Cases:
Al-Jehad Trust Vs. Federation of
Pakistan, PLD 1996, SC. PP- 324, 405,
491.
Al Jehad Trust Vs. Federation of
Pakistan PLD 1997 SC. P- 84.
M. D. Tahir Advocate Vs. Federation of
Pakistan, Lahore High Court’
(Unreported judgment) Writ petition No:
Supreme Court Bar Association V.
11757/99.
Federation of Pakistan PLD 2002 SC P-
Malik Asad Ali Vs. Federation of
939.
Pakistan SCMR 1998 P- 119 and PLD
1998 SC P- 161.
Sharaf Faridi and Others V. The
Federation of Pakistan through Prime
Minister and others, PLD 1989 Karachi
P-404.