Islamabad, May 09, 2012 (PPI-OT): Earlier today, the Supreme Court of Pakistan announced its decision in a case relating to the selection and appointment of judges of the district judiciary. The Court has held that High Courts are the forums constitutionally empowered to select and appoint judges of the district judiciary. The control of the process cannot be vested in the Executive, which includes the Public Service Commission.
By way of background, it may be recalled that, in 2008, the Government of Sindh had issued a notification which sparked the present controversy. The 2008 Notification took the power of selecting and appointing judges of the district judiciary away from a “Provincial Selection Board” comprising High Court judges. The power was, instead, handed over to Sindh Public Service Commission. The petitioners, Sindh High Court Bar Association, Sindh Bar Council, and some members of both, had challenged the constitutionality of the Notification before the High Court of Sindh.
They had contended that the Notification adversely affected the independence of the judiciary and its separation from the Executive–both guaranteed by the Constitution; and that the role which the Constitution had reserved for the High Courts could not be conferred on any other body, not even the Public Service Commission. 1n 2009, the High Court accepted the petition and struck down the Notification. The Government of Sindh had appealed to the Supreme Court. Today, that appeal has been dismissed.
In the opinion authored by Justice Khawaja, the Supreme Court has reaffirmed a long series of precedents pertaining to the institutional guarantees provided by the Constitution to the judiciary. The opinion explains that those guarantees applied to both the superior judiciary and the district courts. Relying upon dicta laid down in the famous Judges’ case, the Court notes the ‘inextricable link’ between the mode of appointment of judges and their institutional independence.
The Court notes that the changes made by the 1994 Rules, such as granting High Courts the power of appointment of judges of the district courts were, in fact, only a contemporary exposition of constitutional articles—such as Article 175 and 203.
The Executive had brought about these changes in the background of constitutional cases—particularly the Sharif Faridi cases—and in fulfilment of stipulated constitutional obligations. It could not reverse such changes now. Any such move would be unconstitutional. The Notification under challenge has been struck down on the same ground.
The Supreme Court has, however, set aside certain remarks in the High Court’s judgment. These adverse remarks pertained to the institutional performance of the Sindh Public Service Commission. Justice Khawaja has clarified that these remarks were unnecessary and not warranted. The High Court was only called upon to adjudicate the validity of a Notification and not the credibility of an institution forming part of the Executive.
The case was decided by a three-member bench of the Supreme Court, headed by Justice Shakirullah Jan.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001