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Overview of Article 175A of the Constitution of Pakistan
The Constitution of Pakistan, enacted in 1973, stands as the foundational document guiding the nation’s governance. Nestled within its pages, Article 175A emerges as a pivotal provision, intricately detailing the procedures and mechanisms governing the appointment of judges to key judicial institutions in the country. This article unravels the complexities and nuances embedded in Article 175A, shedding light on its significance in shaping Pakistan’s judiciary.
Article 175A States
175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court
- There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.
- For appointment of Judges of the Supreme Court, the Commission shall consist of–
- Chairman Chief Justice of Pakistan;
- Members four most senior Judges of the Supreme Court;
- Member a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the four member Judges, for a period of two years;
- Member Federal Minister for Law and Justice;
- Member Attorney-General for Pakistan; and
- Member a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.
- Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.
- The Commission may make rules regulating its procedure.
- For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:-
- Member Chief Justice of the High Court to which the appointment is being made;
- Member the most senior Judge of that High Court;
- Member Provincial Minister for Law; and
- Member an advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years:
- Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission:
- Provided further that if for any reason the Chief Justice of a High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2)
- For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:-
- Member Chief Justice of the Islamabad High Court; and
- Member the most senior Judge of that High Court
- Provided that for initial appointment of the Chief Justice and the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission:
- Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.
- For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members:
- Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply.
- The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be.
- The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:-
- four members from the Senate; and
- four members from the National Assembly:
- Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members of the Senate only mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis apply.
- Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.
- Secretary, Senate shall act as the Secretary of the Committee.
- The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:
- Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period:
- Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister:
- Provided further that if a nomination is not confirmed, the Commission shall send another nomination.
- The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.
- No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.
- The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.
- The provisions of Article 68 shall not apply to the proceedings of the Committee.
- The Committee may make rules for regulating its procedure.
Key Points of Article 175A of the Constitution of Pakistan
- Constitution of the Judicial Commission: This commission is chaired by Pakistan’s Chief Justice and includes four most senior Supreme Court judges, one former Chief Justice or Judge nominated by them, along with the Federal Minister for Law and Justice, Attorney-General of Pakistan and one Senior Advocate nominated by Pakistan Bar Council.
- Appointment of Chief Justice: Although appointed by the Commission, President Asif Ali Zardari chooses the senior judge of Pakistan’s Supreme Court as Chief Justice.
- Procedures for Supreme and High Courts: When making appointments to either of the highest courts, the Commission includes additional members such as their Chief Justice, most senior judge of that High Court, provincial Minister for Law and an advocate nominated by Bar Council.
- Appointing Judges to Islamabad High Court and Federal Shariat Court: For each court, the Commission’s composition is adjusted so as to include both its Chief Justice and most senior judge from each.
- Nomination to Parliamentary Committee: The Commission, by a majority, nominates candidates for judicial vacancies to the Parliamentary Committee.
- Composition of the Parliamentary Committee: The Committee consists of members from the Senate and the National Assembly, including representation from both Treasury and Opposition Benches.
- Confirmation Process: The Committee is required to confirm or reject nominees within fourteen days, with provisions for a deemed confirmation if the process is not completed.
- Validity of Actions: Article 175A ensures that actions or decisions of the Commission or the Committee are not invalidated due to vacancies or member absence.
- Confidential Proceedings: Committee meetings are held in camera, maintaining the confidentiality of proceedings.
- Exclusion of Article 68: The proceedings of the Committee are not subject to Article 68, which concerns the freedom of members of Parliament.
- Rules for the Committee’s Procedure: The Committee possesses the authority to establish rules for regulating its procedures.
Crux of Article 175A of the Constitution of Pakistan
The essence of Article 175A lies in its meticulous design to ensure the transparency, meritocracy, and independence of the judicial appointment process. By establishing the Judicial Commission and defining its composition, the article 175A sets the stage for a collaborative and inclusive approach to selecting judges, encompassing perspectives from the judiciary, legal experts, and the government.
The provision’s meticulous procedures, whether for the Supreme Court, High Courts, or specialized courts like the Federal Shariat Court, underscore a commitment to upholding the highest standards in judicial appointments. The inclusion of the Parliamentary Committee adds an additional layer of scrutiny and validation, contributing to the democratic ethos of the appointment process.
Conclusion: Article 175A of the Constitution of Pakistan
In conclusion, Article 175A stands as a testament to the evolution of Pakistan’s constitutional framework, adapting to the complexities of contemporary governance. By crafting a detailed and inclusive process for judicial appointments, the framers of the 1973 Constitution demonstrated their commitment to a judiciary that is independent, transparent, and reflective of the diverse facets of the legal landscape.
Article 175A navigates the delicate balance between the judiciary, the executive, and legislative branches, ensuring that the appointment of judges remains a collaborative endeavor. As Pakistan continues to progress, this provision will undoubtedly remain a cornerstone, fostering a judiciary that embodies the principles of justice, fairness, and integrity, thus contributing to the nation’s democratic resilience.