960402

The requirement of 10 years practice under Article 193 (2) (a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.

The simpliciter political affiliation of a candidate for judgeship of the superior courts may not be a disqualification provided the candidate is of an un-impeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.

It is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this court in the case of "Abrar Hasan vs Government of Pakistan and others".

The Full Bench passed the following directions in this regard: A- That permanent Chief Justices should be appointed in the High Courts where there is no permanent incumbent of the office of the Chief Justice; B- The cases of Appellants number three to seven (Additional Judges who were dropped) shall be processed and considered for their permanent appointment by the permanent Chief Justice within one month from the date of office by him as such; C- That appropriate action be initiated for filling in permanent vacancies of Judges; D- That ad hoc Judges working at present in the Supreme Court either be confirmed against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should be sent back to their respective High Courts; E- That the cases of the appointees of the Federal Shariat Court be processed and the same be brought in line; F- That upon the appointment of the permanent Chief Justice in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Court Judges within one month from the date of assumption of office by a permanent incumbent, whichever is later in time and to take action for regularising the appointments/confirmation of the judges recently appointed/confirmed. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not of appointment in the Supreme Court of ad hoc/Acting Judges.

The Full Bench observed that the grievance of the Petitioner is that the appointments of some judges in the High Court were not made in strict accordance with the provisions of the constitution and some Additional Judges appointed already have not been made permanent, hence such action of the Government is in violation of the constitutional requirements.

In this connection, contention was raised by the petitioner that under Article 193, not only the procedure for appointments is provided, but pre-requisite qualifications are also mentioned, and that Article 197 envisages appointment of Additional Judges in the High Court, hence both are to be read together showing mode of appointment and permanent appointment in the constitutional scheme on the basis of "Consultation" by the President with the Chief Justice of the High Court concerned, Governor and Chief Justice of Pakistan as is mentioned in Article 193.

The bench observed that the petitioner is a practising lawyer and has a vital interest in the judicial set-up which can function independently only when there is proper and total compliance of the Articles relating to the judiciary and appointments are also made in accordance with the constitutional scheme made thereunder. According to the petitioner, a lawyer cannot survive if the judiciary is not independent. The Supreme Court held that the power of judicial review therefore must exist in courts of the country in order that they may be enabled to interpret the Constitution in all its multifarious bearings on the life of the citizens in this country.

It is also held that the Constitution ought to be interpreted as an organic whole, giving due effect to its various parts and trying to harmonise them, so as to make it an effective and efficacious instrument for the governance of the country.-APP