The Question Of Appointment Of Judges Is A Question Of The Independence Of Judiciary
A friend recently referred to a published news item about the transfer of a High Court judge from the Principal Seat to a Bench (explained below) on the Chiefs Justice’s orders. My friend found the news to be amusing and tried to provide an “inside story”, but for me the news was not only a simple case of transfer but also an example of the independence of judiciary under our exisiting constitutional scheme.
In 2005, when I also started to appear before the Lahore High Court-Bahawalpur Bench at Bahawalpur, the judges would grace the Benches, not for any specific period of time, but were appointed for a very famous term of “till further orders”. The beauty of that order was that some judges would grace the Benches for years while some remained for a few weeks only.
Things have changed now as the practice of appointment of judges to Benches ’till further orders’ has been discontinued. Moreover, the Lahore High Court, with the approval of Chief Justice, has been issuing the roster for Principal Seat as well as Benches for a period of time usually extending to 3-4 months. The apparent purpose of this change seems to rotate the judges periodically so that most of them are able to serve at Benches as well as the Principal Seat, which is a positive and commendable change, but if we go deep into the issue we will find this matter to be so important that it goes to the roots of the principle of independence of judiciary under our constitutional scheme.
The Constitution of 1973 has introduced a system of trichotomy of powers which, at least theoretically, not only provides safeguard against excesses by any one branch of the state – executive, legislature, judiciary – against the other, but also provides safeguard against internal excesses of any of the three branches.
I will now try to explain why in my opinion the question of the appointment of judges of High Courts at Benches is a question of the independence of judiciary.
Under Article 175 of the Constitution, all provinces, as well as the Islamabad Capital Territory (apart from the Supreme Court of Pakistan), have a High Court, and under Article 198 (3) of the Constitution, all the provincial High Courts have certain permanent Benches. In Punjab, there are three permanent Benches of the Lahore High Court, including Bahawalpur, Multan and Rawalpindi, and judges on these Benches are appointed by the Chief Justice exercising powers under the Lahore High Court (Establishment of Benches) Rules 1981. As per Rule 7 of the 1981 Rules, no time limit has been specified for which a judge may be asked to sit on a Bench or Circuit Court, rather it is up to the Chief Justice to decide the period without any minimum or maximum time limit. While exercising powers under the above-cited Rules, the Chief Justices may not have considered the provisions of Article 198 (5) of the Constitution reproduced below:
(5) A Bench referred to in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.
The conflict between the practice of appointment of judges at Benches under the Lahore High Court (Establishment of Benches) Rules 1981 and Article 198 (5) of the Constitution is quite evident and there is no cavil to the proposition that in case of a prima facie conflict between a constitutional provision and a sub-constitutional law, the latter should be interpreted in a way which may not be in conflict with the former, and in case reconciliation is not possible then the Constitution shall prevail and the other provisions shall be declared ultra vires to the Constitution.
In my view, there is no apparent conflict between Article 198 (5) of the Constitution and the Rules of 1981 rather the conflict is due to exercise of powers under the Rules of 1981 without taking into consideration constitutional provisions. The Chief Justices have the authority to require any judge to sit on any Bench for a certain period of time but this period should not be less than one year.
Why certainty of period for which a judge is required to serve on a Bench is important and how it safeguards against any possible internal excesses resulting in a compromise of the principle of independence of judiciary
As the presumption exists, the Constitution not only provides safeguards against excesses of power by the three branches of state, it also gives protection against internal overdoing, therefore, strict adherence to its script guarantees the achievement of the cherished goal of independence of judiciary externally as well as internally.
We may also understand this issue from another angle. It is an established principle of the administration of justice that in order to secure the ends of justice, judges should have full authority to decide the cases entrusted to them, without any external or internal pressure. They should also have an independent option to manage their docket. But if they are uncertain in any way about serving on the Principal Seat or the Bench, then they may not be in a position to manage their docket properly.
Some critics are of the view that the practice of appointment of judges at Benches without any specified period of time and ’till further orders’ under the Rules of 1981 has occasionally been used to refrain judges from hearing any case entrusted to them and these critics cite a number of incidents in support of their argument. Even though we may not generally agree with them, it is undeniable that the practice of appointment of judges at Benches without following Article 198 (5) of the Constitution has the potential to be misused, which may not be conducive for the administration of justice and will definitely be against the principle of independence of judiciary.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.