Tuesday December 05, 2023

Judges expected to display exemplary conduct: Justice Minallah

September 27, 2023

ISLAMABAD: Supreme Court of Pakistan Justice Athar Minallah has observed that judges hold exalted positions and are expected to display exemplary conduct while perfuming their duties.

“They lay down principles of fairness and conduct for others to follow as benchmarks for judging the legitimacy and legality of proceedings or taking decisions in conformity with powers conferred under the law,” he said while giving his detailed reasoning on his dissenting note.

A three-member bench of the apex court headed by Justice Munib Akhtar and comprising Justice Muhammad Ali Mazhar and Justice Athar Minallah on May 30, 2023 had heard a petition of the federation of Pakistan versus Fazle Subhan and others. The federation and private petitioners had sought leave against the judgment dated 10.05.2022 of the Peshawar High Court whereby a decision of a parliamentary committee established under Article 175A of the Constitution of the Islamic Republic of Pakistan 1973 dated 19-01-2022 was set aside and a writ was granted to give effect to nominations forwarded by the Judicial Commission of Pakistan.

Justice Minallah recalled that in Tariq Azizuddin’s case, this court had set aside promotions made by the executive because it was concluded that eligible candidates had been ignored and thus the selection was not made on merit. In Orya Maqbool’s case, he noted, 18 promotions to higher grade were found to have been made illegally because the objective criteria lacked transparency. Similarly, Justice Minallah noted that in Dr Muhammad Arif’s case, the promotions were annulled because evaluation of integrity had been made on the basis of personal knowledge and opinions of board members. “Should the same principles not apply to the case of the commission merely because the majority of its members happen to be serving or retired judges?” the judge questioned, adding that not only the principles should apply, they should be applied more rigorously to forums consisting of serving judges. He said the proceedings of a forum consisting of judges should be so transparent and conducted in such a manner that no one has an opportunity to raise doubts regarding the legality of the decisions or procedural propriety.

He said the reputational damage caused to a judicial officer in the absence of any material in support of allegations was not justified. The chief justice had conceded that one of the superseded judicial officers was suitable to be considered and he had agreed not to fill one vacancy. However, on the ground of ‘backlog’ in the high court, an eligible judicial officer was ignored, rather superseded though his competence and integrity was not doubted.

The judge maintained that the decision was irrational and based on irrelevant consideration, adding that the other three judicial officers were also eligible to be considered, but their record was neither sent nor placed before the commission because in the opinion of the chief justice, they were not suitable.

Justice Minallah noted that there were serious allegations against the three judicial officers, but yet they were serving as district judges. “If they were suitable to perform their duties as adjudicators in the district judiciary, why were they disqualified from being considered to be appointed as judges of high court?, the judge questioned, adding that whether the functions and responsibilities of judges of district courts were inferior to those of the judges of a high court? He noted that the commission had relied on the subjective opinion of the chief justice and thus endorsed the allegations against the three judicial officers. “The judicial officers were condemned unheard but should they have been allowed to continue to serve as district judges?” he questioned, adding that these questions had arisen because the proceedings of the commission were not in conformity with the standards that would pass judicial scrutiny.

“The commission, by giving primacy to the opinion formed by the chief justice prior to the commencement of the proceedings, had violated the principle laid down in Munir Bhatti’s case,” Justice Minallah said. He observed that the commission had failed to perform its duty and the terms of power conferred under Article 175A were breached. Similarly, the power to nominate was also not exercised for achieving the objective for which the power had been conferred. “In the absence of the predetermined objective criteria and lack of transparency, the nominations could not have been made on merit,” Justice Minallah said, adding that the bottleneck created by the chief justice at the stage of identification of eligible persons had prevented the commission from performing its duty in accordance with the terms of its powers under Article 175A. “If all the eligible persons had been considered by the commission on the basis of the relevant record, a legitimate doubt would not have arisen even if the nominations had been the same. All that the committee had done was to highlight the illegality of the nomination and contravention of the terms of powers conferred on the commission under Article 175A. The Commission had failed in its duty to make nominations on the basis of merit and touchstone discussed above. The high court, while passing the impugned judgment, had not appreciated that the eventualities were distinct and did not attract the law laid down in Munir Bhatti’s case,” Justice Minallah noted. He said this court ought to recognize the unique representative character of the parliamentary committee and its role as a forum created for democratic accountability and oversight. “It represents litigants and people who are the sole stakeholders of the judicial organ of the state,” the judge said, adding that it was their interest that was of paramount importance because they suffered when an appointment was not made on merit. The forgoing is the reason for the short order whereby leave was granted and the petitions were converted into appeals and allowed by setting aside the impugned judgment of the high court.

It is pertinent to mention here that the chief justice of the Peshawar High Court had initiated the cases of six candidates for elevation as judges against the vacancies in terms of Rule 3 of the Judicial Commission of Pakistan.