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Address to

The National Assembly

by

Mohtarma Benazir Bhutto

Prime Minister Islamic Republic of Pakistan

Islamabad 28 March, 1996

 

Mr. Speaker Sir,

 

Today I would like to make a statement in connection with the judgement announced by the Supreme Court in the case of Al-Jihad Trust vs the Federation of Pakistan on the appointment of judges to the superior judiciary.

 

The hearing of this case began in the autumn of 1995. After several months, it concluded on March 20, 1996, that is one week ago.

 

The short order was signed by four of the five Judges hearing the case.

 

A detailed judgement of all five members of the Bench is still awaited by the nation.

 

Unfortunately the last few days have seen the politicization of the Supreme Court order. The aim is to give an impression that a constitutional or political crisis has emerged. At the outset, in categorical terms, I dispel the impression that a crisis of any nature, political, consti­tutional or of administrative nature exists.

 

The unanimously passed Constitution of 1973 enshrines the doctrine of tracheotomy of powers wherein each organ of State, the Execu­tive, Legislature and Judiciary are to perform their functions within the ambit of the Constitution.

 

The constitutional framework contains adequate checks and balances providing a harmonious function of the three organs of the State in order to provide stability and strength to the Federation.

 

In a federal parliamentary system, run under a written constitution such as ours, it has been clearly defined that it is the prerogative of the Legislature to enact laws. The Legislature alone can amend the Constitution in accordance with the wishes of the people.

 

It is for the executive to implement the will of the people expressed through legislation in Parliament. It is for the judiciary to interpret the law and it is for the judiciary to interpret the Constitution.

 

It is for the Government to implement the decision of the superior judiciary under Article 190 of the Constitution of the Islamic Republic of Pakistan.

Our Government has always accepted judgement and decrees passed by the Courts in the past.

 

We have at no time stated that we shall not implement the order of the Court. However motives have been attributed to us for not at once implementing the short order of the Supreme Court which was passed only last week.

 

As I have already said that the short order is not ordinary. It requires time for understanding its far-reaching consequences.

 

The people of Pakistan, like the majority of the legislators present in the House today, have been part of a long twilight struggle for the restoration of democracy, the supremacy of Parliament and the rule of law.

 

This nation has a valiant history of relentless struggle against the forces that have usurped the sovereignty of the people of Pakistan and have arrogated unto themselves the mandate to rule the country by amending the Constitution.

 

Given this historical background, tempered with practical struggle, the Government of Pakistan jealously guards not only the Constitution but also jealously guards the tracheotomy of powers which is in reality the soul of the Constitution. Given this historical background, tempered with practical struggle, we have guarded the Constitution.

 

 

But it is unfortunate that for the last couple of days, a storm of polit­ical rhetoric has been unleashed to try and gain petty political advantage without considering the serious consequences that flow from the announcement of the short order.

 

The Government had clearly stated that it was studying the short order and that it would make its response after the detailed reasons were recorded and delivered by the Supreme Court.

 

This was the response of a responsible Government, a Government alive to its Constitutional responsibilities and obligations, conscious of the political and administrative fallouts. The earlier position taken by the PDF Government remains unaltered.

 

The Government is in continuous consultation with eminent jurists and legal experts.

 

We are aware of the opinions of the jurists expressed through news­papers and otherwise. They opine that the short order goes beyond the pale of clear provisions of the Constitution. Articles 177 and 193 of the Constitution provide for the appointment of Judges. The appointment power lies with the President.

 

A consultative process is mentioned in the said Articles. Nowhere is it mentioned that the opinion of any of the consultees is binding on the President.

 

Yet paras 1 and 2 of the conclusions of the short order state, "the opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive".

 

This direction has two serious consequences. Firstly, it curbs the Constitutional power of the President to appoint Judges and, secondly, the recording of sound reasons opens the advice of the Prime Minister to scrutiny which is prohibited by Article 48 (4) of the Constitution. I read Article 48(4) of the Constitution:

 

"The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into, or by any court, tribunal or other authority".

 

Similarly, no timeframe is given to the Executive for filling of vacancies in the offices of Chief Justices.

 

The finding that Acting Chief Justice is not consultee for the appointment of Judges goes contrary to Article 260 of the Constitution of Islamic Republic of Pakistan which says: "The Chief Justice, in relation to the Supreme Court or a High Court, includes the Judges for the time being acting as Chief Justice of the Court".

 

The Additional Judges' entitlement to be appointed as permanent Judges is not found in the Constitution.

 

The Additional Judges are appointed for a fixed term of office. They take the same oath as that of the other permanent Judges. Hence their independence is not impaired by the fact that they are Additional Judges.

 

It was Hazrat Ali who said that you should appoint those men as Judges who are reluctant to accept the office.

 

Applications are not invited for the appointment of superior courts judiciary. Men and women of caliber are requested to be Judges. Therefore the expectancy of a Judge to be permanent Judge in the opinion of some disqualifies him from being a Judge at all.

 

The Supreme Court short order regarding entitlement of the senior most Judge to be the Chief Justice of a High Court adds words to Article 193 of the Constitution of Pakistan. Article 193 simply states that a Judge of a High Court which includes the Chief Justice shall be appointed by the President after consultation with certain functionaries.

 

Can one provision of the Constitution be declared as violative of another provision of the Constitution by the Superior Courts ? I ask the question, because Article 203C of the Constitution relating to the Federal Shariat Court has been declared violative of Article 209 by the short order.

 

Article 203C of the Constitution talks about the composition of the Federal Shariat Court where an appointment for two years or less does not require consent. Prima facie the short order is in conflict with the express words of the Constitution.

 

If the appointment is more than two years, a Judge cannot be sent to the Federal Shariat Court without his consent.

 

The conclusion No. VIII in the Short Order is, prima facie, in conflict with the express words of the Constitution.

 

There is no condition of seniority attached to the appointment of a Chief Justice.

 

It is interesting that the same principle has not yet been made applicable to the appointment of the Chief Justice of Pakistan.

 

The question also arises whether proceedings of a court are vitiated when a Judge sits in his own cause.

 

Conclusions No. I and II of the short order provide for a "consensus-oriented" consultation. They do so while excluding the governors/provincial executives of the federating units from the process of consultation altogether.

 

Pakistan is a federation. The provinces of Pakistan enjoy autonomy. The Governor/Executive of a federating unit has been given equality of weight with other consultees according to Article 193 of the Constitution.

 

Article 193 states :

 

"A Judge of a High Court shall be appointed by the President after consultation—

(a)                               with the Chief Justice of Pakistan ;

(b)                              with the Governor concerned ; and

(c)                               Except where the appointment is that of Chief Justice, with the Chief Justice of the High Court."

 

One of the most serious consequences which flow from the short order is on account of the combined reading of conclusions VI and XIII.

Conclusion VI reads as under :—

 

"An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice          "

 

Conclusion No. XIII reads as under:—

 

"That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any Appointment / confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid".

In these two conclusions, the office of the Acting Chief Justice, as contemplated under Articles 180 and 196 of the Constitution has been rendered ineffective in the matter of consultation for appointment or confirmation of Judges.

 

In conclusion No. XIII it is stated that if any appointment has been made in consultation with an Acting Chief Justice, the same would be invalid.

 

This is tantamount to opening a pandora's box because Acting Chief Justices in the Supreme Court of Pakistan and the High Courts did not start being appointed in 1994 when Benazir Bhutto took over. They have been appointed under the 1973 Constitution ever since its enforce­ment.

 

On testing all appointments made on the touchstone of conclusion No. XIII, the result would lead to a large vacuum in the judicial structure of Pakistan. As a consequence scores of judges belonging to the superior judiciary could be affected.

 

I shall give you the names, Mr. Speaker, later.

 

Under Article 196 of the Constitution a Judge of the Supreme Court can act as Chief Justice of a High Court. Conclusion No. XII, states that it is undesirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court. The order directs that permanent Chief Justices be appointed. This runs contrary to the provisions of the Article of the Constitution.

 

Mr. Speaker Sir,

 

Addressing the Cornelius Society in Lahore on December 23, 1995 Justice Dorab Patel, a highly respected jurist and human rights campaigner and one who has at times criticized this government stated:

 

"The view that the people through their elected representatives should not have any voice in the appointments to the Superior Courts, is, in my opinion, contrary to democratic norms."

 

He is on record as having said "from the time High Courts were set up, a judge was usually appointed as an additional judge for two years". (Dawn March 18, 1996).

 

And

 

"A more difficult case would be if a Chief Justice does not rec­ommend a deserving person for appointment because of some personal or parochial prejudice. Society in this sub-continent is riddled with such prejudices and Chief Justices are part of the society in which they live.

 

"That is why I have said that an appointment of Judges to the Superior Courts is too serious a matter to be left to Judges".

 

Mr. Speaker Sir,

 

Let me re-affirm that I am not here to give a critique of the short order of the Supreme Court. I am here to highlight some of the inter twined strings that spin as a consequence of the short order.

 

Let it be clear that the PDF Government is committed to gover­nance in accordance with the Constitution and law.

 

This Government is committed to the concept of an independent judiciary, a concept for which we have waged a relentless struggle, a con­cept to which we have given reality by bringing the Legal Reforms Bill, 1996 before the House. And let me make it clear that there is no con­frontation between any organ of State and that each continues to function harmoniously with the other in accordance with the Constitution.

 

I may add, Mr. Speaker that we believe in "effective, meaningful and purposive" consultation and have been practicing it even before this judgement.

 

We have consulted the Governor and Chief Justices in writing about appointment of judges and the record is available.

 

We have consulted the Chief Justice of Pakistan on the appointment of Judges and the record is available.

 

We consulted the Chief Justice of Pakistan on the appointment of Acting Chief Justices to the High Courts in writing and he concurred.

 

We appointed additional judges after a similar process of consulta­tion in writing and nowhere were it pointed out that consultation should not be with Acting Chief Justices.

 

In the one case in which there was disagreement, valid reason for the same was recorded before the announcement of this short order.

 

Mr. Speaker, Sir!

 

Nations in their history at times are confronted with complex legal prepositions which, when addressed with honesty of purpose and in strict adherence to the letter and spirit of the law and Constitution, stand sur­mounted. The criticism, therefore, of the Government by forces seeking to disturb the equilibrium, is unfounded, mollified and baseless.

 

We welcome, Mr. Speaker, the statement of the Leader of the Opposition wherein he stated: "This is a decision which is neither in our favour nor yours".


 

 

It is unfortunate that the Opposition has tried to politically exploit the judiciary despite the statement by the Leader of the Opposition. It has indulged in attacks on the courts and in hooliganism and arson including the burning of cars.

 

According to the Frontier Post (28-03-1996): "The premises of the Lahore High Court, the oldest court in the subcontinent, witnessed a tragic scene on Wednesday involving brawl, free for all abuse, pelting of stones…….. the lawyers who are generally considered to be the most vocal protagonists of law…….regrettably could not sustain the image".

 

According to an item in the Nation (28-03-1996) "one has a feeling that it is basically the politics of the Lahore High Court that the Opposition is playing up at the national level. For them the most crucial issue in the Supreme Court judgement is its effect on the fate of newly appointed judges of the Lahore High Court. At no cost do they want "their" judges to become permanent ……"

 

An Opposition stalwart when asked had an interesting approach, "you see if we let them take over the judiciary, and then the Senate in the next election due next year, we won't be able to function even if we make our government the next time...................................... ", and then the item goes on.

 

"Why cannot judges be simple judges one may ask?"

 

According to yet another initial report received by the government of the 10 people arrested yesterday, one was armed with a mouser.

 

This is no way to show respect to the judiciary, to the rule of law or to the Constitution.

 

This is hooliganism pure and simple.

 

We on the other hand, Mr. Speaker, are working for judicial harmony.

 

We do not consider this order against the Executive. After all, all our appointments were made after full consultation and in writing.

 

To our view this is an order by the judiciary against the judiciary where judges may face the unfortunate risk of being dragged into litigation.

 

We do not wish to see the majesty and awe of the judiciary undermined by ridicule and crude behavior, witnessed since the passing of this short order.

 

Newspapers have already reported of threats being meted out to judges and disrespectful behavior being shown to them by some advo­cates following this order although the order does not prevent the judges from performing their functions until they are regularized within one month of the appointment of a permanent Chief Justice.

 

There is also the question of whether judges can be removed by any other clause but Article 209. According to the Constitution once an oath is given even to an additional or ad hoc judge, he is a judge for all purposes and the Constitution allows a judge only to be removed under Article 209.

 

Now a quandary arises as to what an executive is to do when an apex court gives a judgement which many in the country believe may be violative of the Constitution.

 

We concede that the judiciary can interpret the Constitution. But, according to code of conduct, the judiciary must submit to the Constitution. The Constitution does not provide the judiciary the power to write and attach a mini-constitution or strike down Articles of the Constitution.

 

We in the Executive have sworn to preserve, protect and uphold the Constitution of the Islamic Republic of Pakistan.

 

Of course, Honorable Members, we must use the constitutional mechanisms available and the Constitution does provide the mechanism. We will do what the Supreme Court decides, because that is the proper body to adjudicate such matters.

 

We have therefore decided to invoke the advisory jurisdiction of the Supreme Court under Article 186 of the Constitution.

 

The grounds for it will be submitted separately in the near future.

 

Meanwhile, without prejudice to our position in seeking an advisory opinion and while recording our reservations we have started implementing the Order.

 

Mr. Speaker, through your good offices, I would like to tell the Opposition members how?

 

Three ad hoc judges of the Supreme Court have been confirmed this morning.

 

Next week consultation process for the appointment of the perma­nent Chief Justices will begin.

 

According to the short order page 8 (No. VI):

 

"An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice          "

 

According to short order page 10 (No. XIII):

 

"That since consultation for the appointment/confirmation of a Judge of a superior court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment / confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid."

 

Mr. Speaker !

 

You already know the names of those whom this government appointed in consultation with Acting Chief Justices who have been declared "violative of the Constitution and therefore invalid" until regularized.

 

I would now, Mr. Speaker, like to give you the names of those appointed earlier who, according to the law of the land lay down are "violative of the Constitution and, therefore, invalid" since the consultees were Acting Chief Justices.

 

I begin with the Balochistan High Court.

 

The following in the light of this judgement would struck down

 

Mr. Justice Munawar Ahmad Mirza, Chief Justice of the Balochistan High Court, date of appointment 31-03-1985. Chief Justice of the Court Acting Chief Justice Abdul Qadeer Chaudhry, Chief Justice of Pakistan Muhammad Haleem. Date of confirmation was 31-03-1988.

 

Mr. Justice Amirul Mulk Mengal, date of appointment as Additional Judge of High Court, 26-03-1986, Chief Justice of High Court, Acting Chief Justice Ajmal Mian. (Annex—A)

I now proceed to the Lahore High Court because none in Peshawar High Court or Sindh High Court have been affected before 1994.

 

Lahore High Court:

 

Mr. Justice Irshad Hassan Khan, appointed on 18-05-1981, by acting consultee Acting Chief Justice Shamim Hussain Qadri. The Chief Justice at that time was Acting Chief Justice Muhammad Haleem.

 

Mr. Justice Khalil-ur-Rehman, 18-05-1981, consultee Acting Chief Justice of the Lahore High Court Mr. Justice Shamim Hussain Qadri, Chief Justice of Pakistan, Acting Chief Justice Mohammad Haleem.

 

Mr. Justice Ijaz Nisar, 16-07-1983, Acting Chief Justice of High Court Justice Javed Iqbal. (Annex—B)

 

Now I come to the Supreme Court. I have already mentioned Justice Irshad Hassan Khan. The following, also the consultees, were Acting Chief Justices, which has been declared violative of the Constitution and invalid:

 

Mr. Justice Mir Hazar Khan Khoso, appointment on 31-03-1985 by Acting Chief Justice.

 

Mr. Justice Muhammad Munir Khan, 18th May, 1981, Acting Chief Justice Shamim Hussain Qadri and Acting Chief Justice Muhammad Haleem.

 

Mr. Justice Muhammad Ilyas, 3rd June 1978, Chief Justice was then Justice Mushtaq Hussain.

 

Mr. Justice Zia Mehmood Mirza, 3rd March 1984, Acting Chief Justice Javed Iqbal, Acting Chief Justice Muhammad Haleem.

 

Mr. Justice Fazal Ilahi Khan, who sat on the Bench, date of appoint­ment 10th April 1982 and consultee Acting Chief Justice Muhammad Haleem.

 

Mr. Justice Saleem Akhtar, date of appointment 19-10-1980, consultee Acting Chief Justice Abdul Hayee Kureshi.

 

Mr. Justice Ajmal Mian, 20-03-1978, who was sitting on this Bench, consultee Acting Chief Justice Agha Ali Haider.

 

These are all members of the Supreme Court of Pakistan.

 

And finally with very deep regret I announce, because all these men are also learned and experienced, Justice Sajjad Ali Shah appointed on 10-08-1978, consultee Acting Chief Justice Agha Ali Haider. Confirmation in the High Court on 10-08-1981 and there too we have Acting Chief Justice. (Annex—C)

 

And with these words Mr. Speaker, I conclude my speech.

Annex ---A

LIST OF THE JUDGES APPOINTED/CONFIRMED AFTER CONSULTATION WITH ACJ/S HIGH COURT OF BALOCHISTAN

 

S.No

Name

Date of Appointment as additional Judge of High Court

Chief Justice of High Court

Chief Justice of Pakistan

Date of Confrimation

Chief Justice of High Court

1

Mr. Justice Munawar Ahmad Mirza

31-3-1985

Justice abdul Qadeer Ch,. ACJ

Justice Mohammad Haleem, CJ

31.3.1988

Mr. Justice Abul Qadeer Chaudhry, CJ

2.

Mr. Justice Amirul Mulk Mengal

26.3.1986

Justice Ajmal Mian Acting CJ

----do----

26.3.189

….do…..

 

Annex ---B

Lahore High Court

 

S.No

Name

Date of Appointment as additional Judge of High Court

Chief Justice of High Court

Chief Justice of Pakistan

Date of Confrimation

Chief Justice of High Court

1

Mr. Justice Irshad Hassan Khan

18.5.1981

Justice Shamim Hussain Qadri, Acting CJ

Mr. Justice Mohammad Haleem Acting CJ

13.5.1984

Mr. Justice Javed Iqbal Acting CJ

2.

Mr. Justice Khalil-ur-Rehman

18.5.1981

…..do…..

…..do…..

…..do…..

…..do…..

3.

Mr. Justice Ijaz Nisar

16.7.1983

Justice Javed Iqbal ACJ

Justice Mohammad Haleem, CJ

25.3.1986

Mr. Justice Javed Iqbal, ACJ

 

Annex ---C

List of the judges appointed/Confirmed

After Consultation with ACJ/S

Supreme Court of Pakistan

S.No

Name

Addl. Judge H.C

Status of C.J.H.C

C.J.P.

Confrimation in H.C

Status of C.J.H.C.

1

Mr. Justice Sajjad Ali Shah

10.8.1978

ACJ Agha Ali Haider

Justice S.A. Haq

10.8.1981

CJ Abdul Hayee

2.

Mr. Justice Ajmal Mian

20.3.1978

ACJ Agha Ali Haider

Justice S.A. Haq

20.3.1980

CJ Agha Ali Haider

3.

Mr. Justice Saleem Akhtar

19.10.1980

ACJ Abdul Hayee Kureshi

Justice S.A. Haq

19.10.1983

CJ Abdul Hayee Kureshi

4.

Mr. Justice Fazal Ilahi Khan

10.4.1982

CJ Mian Bashir Uddin for Consultation/ Sayed Usman Ali Shah on date of oath

ACJ Muhammad Haleem

10.4.1985

CJ Sayed Usman Ali Shah

5.

Mr. Justice Zia Mahmood Mirza

3.3.1984

ACJ Javed Iqbal

ACJ Muhammad Haleem

2.3.1987

CJ Ghulam Mujaddad Mirza

6.

Mr. Justice Muhammad Ilyas

3.6.1978

CJ Mushtaq Hussain

Justice S.A. Haq

2.6.1981

ACJ Shamim Hussain Qadri

7.

Mr. Justice Muhammad Munir Khan

18.5.1981

ACJ Shamim Hussain Qadri

ACJ Muhammad Haleem

13.5.1984

ACJ……..

8.

Mr. Justice Mir Hazar Khan Khoso

31.3.1985

ACJ Zaka Ullah Ladhi

ACJ Muhammad Haleem

31.3.1987

ACJ……..

9.

Mr. Justice Irshad Hasan Khan

18.5.1981

ACJ…….

ACJ Muhammad Haleem

13.5.1984

ACJ Javed Iqbal

 

 

 

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