PLJ 2013 SC 1
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Mian
Shakirullah Jan, Jawwad S. Khawaja & Amir Hani Muslim, JJ.
PROVINCE OF SINDH through Chief Secretary &
another--Appellants
versus
RASHEED A. RIZVI
& others--Respondents
Civil Appeals
Nos. 212 & 213 of 2011, heard on 16.2.2012.
(Against the
order dated 15.6.2009 passed by the High Court of Sindh at Karachi, in Const. Petitions Nos.D-2404/08
and D-38/09).
Sindh Judicial
Service Rules, 1994--
----R. 5--Sindh
Civil Servants Act, 1973, S. 26--Constitution of Pakistan, 1973, Arts. 175(3) &
203--Appointment of judicial officers--Appointment mechanism--Amendments made
in Sindh Judicial Service Rules through impugned notification--Notification was
challenged--Constitutional validity before High Court--Amendments were
violative of constitutional imperative requiring separation of judiciary from
executive and adversely affected the independence of judiciary--Notification
was declared ultra vires of Constitution--Challenged to--Conferment of power of
selection on Sindh Public Service Commission and power of appointment on Govt.
coupled with withdrawal of power from provincial selection board amounted to an
unconstitutional encroachment on independence of judiciary--Process of
appointments to judiciary must be carefully scrutinized through lens of
constitutional principles such as principle of separation of powers--Impugned
notification which took away power of selection from High Court and gave it to
S.P.S.C. did not meet constitutional standards which have become part of
jurisprudence--Method of making appointments of judicial officers attempted
through notification had effect of negating independence of judiciary and
separation of powers envisaged in Arts. 175 and 203, Constitution because High
Court was neither involved in selection of judges nor in their appointment,
Sindh Public Service Commission is an executive body was quite enough to show
that it cannot under constitutional scheme, be vested with exclusive power to
select judicial officer--Appeal was dismissed. [Pp.
5, 6 & 11] A, B, C & E
Sindh Judicial
Service Rules, 1994--
----R.
4--Appointment of judicial officers to judicial service--Independence of
judiciary and separation from executive--Dispensation--Violation of
constitutional imperative--Validity--Dispensation the Govt. makes appointments
while selection was done through SPSC--High Court can, at most trigger process
of appointment by making requisition, but Court itself had no say either in
selection of judicial officer for recruitment in judicial service or in their
appointment--Impugned notification and amendments made, in Rules, 1974 were
ultra vires of constitution and of no legal effect. [P. 9] D
Constitution of Pakistan,
1973--
----Art.
199--Sindh Civil Servants Act, 1973--Constitutional Petition--Appointment of
judicial officers in Distt. Judiciary--Appointment
mechanism--Amendment--Notification--Ultra vires--Province is obliged to adopt
uniform method for selection and appointment of judicial officers--Competence
or good faith of Sindh Public Service Commission--Validity--By passing remarks,
Court has risked tainting institutional credibility of SPS (on basis of
specific or unspecified incidents adverted to by High Court which would be
amenable to correction through judicial review--Illegal decision taken by SPSC
while selecting Distt. Attorney or prosecutor can thus easily be set aside by
High Court in exercise of powers of judicial review vested in it under Art. 199
of Constitution--General observations, comments and conclusions drawn in
respect of SPSC by High Court were not appropriate or necessary--Supreme Court
had felt necessity of reiterating constitutional structure of separation of
powers between executive, judiciary and legislature to ensure that selections
past and future made by SPSC were not subjected to litigations and judicial
review on basis of observation and conclusions made by High Court--Appeals were
dismissed. [Pp. 11 & 12] F
& H
Constitution of Pakistan,
1973--
----Art.
138--Function of Provincial Govt. of Sindh--Performing an executive
function--Cannot be given task of making appointments to
judicature--Validity--While it remains a part of executive for effective
discharge of its duties--Where autonomy is unlawfully impugned upon by
executive in given situation, remedy lies in rectifying u/Art. 199 of Constitution rather than declaring an executive body to be
incompetent or to be acting mala fide. [P.
12] G
Mr. Abdul Fateh
Malik, A.G. Sindh and Raja A. Ghafoor, AOR for Appellants (in C.A. No.
212/2011).
Mr. Rasheed A.
Rizvi, Sr. ASC for Respondent No. 1 (in C.A. No. 212/2011).
Mr. Anwar
Mansoor Khan, Sr. ASC for Respondent No. 2 (in C.A. No. 212/2011).
Mr. Abdul Malik,
A.G. Sindh and Raja A. Ghafoor, ASC for Appellants (in C.A. No.
213/2011).
N.R.
for Respondent No. 1 (in C.A.
No. 213/2011).
Mr. Muhammad
Waqar Rana, ASC for Respondent No. 2 (in C.A. No. 213/2011).
Mr.
Abdul Rasool Memon, Registrar, High Court of Sindh for Respondent No. 3 (in
both cases).
Maulvi
Anwar-ul-Haq, Attorney General of Pakistan on Court's notice (on behalf of
Federation).
Date of hearing:
16.2.2012
Judgment
Jawwad S.
Khawaja, J.--These appeals raise issues concerning the manner in which judicial
officers are appointed in the province of Sindh through initial recruitment.
The appellants impugn the judgment of a five Member Bench of the High Court of
Sindh dated 15.6.2009 that has set aside amendments made by the Sindh
Government to the appointment mechanism. For reasons elaborated in this
opinion, we have dismissed these appeals and upheld the impugned judgment
subject to a modification elaborated toward the end of this opinion.
THE PARTIES:
2. Before setting out the facts which have given
rise to these two appeals, we may make a note of the parties involved in the
controversy. There are two appellants, namely the Province of Sindh
and the Sindh Public Service Commission ("SPSC") who have filed both appeals. Rashid A. Rizvi, a member of the
Sindh High Court Bar Association ("SHCBA") and the SHCBA are
respectively Respondents Nos. 1 and 2 in Civil Appeal No. 212/2011 while Abdul
Haleem Siddiqui Advocate who was a member of the Sindh Bar Council
("SBC") and the SBC are respectively Respondents Nos. 1 and 2 in
Civil Appeal No. 213/2011.
THE FACTS:
3. The appointment of judicial officers in the
District Judiciary in the province
of Sindh is governed by
the Sindh Judicial Service Rules, 1994 (the "1994 Rules"). Prior to
the framing of these rules in 1994, judicial officers were inducted in the
Sindh judicial service in accordance with rules of general application which
were framed under Section 26 of the Sindh Civil Servants Act, 1973. These were
called the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules,
1974 (the "1974 Rules") and were applicable to the recruitment of
civil servants including those inducted in the judicial service.
4. This position was changed radically by the
1994 Rules which were notified on 24.11.1994 vide Notification No.
SOR-I(S&GAD)2/3-93. The background and the reasons
which led to the framing of the 1994 Rules have an important bearing on the
outcome of this case. We will advert to these in detail, later in the opinion.
For the present, it will suffice to note that the method of recruitment
prescribed by the 1994 Rules departed from the earlier 1974 Rules in important
particulars; the most relevant in the present context being the method of
selection and appointment of Judges in the District Judiciary. While
recruitments to the judicial service prior to 1994 were made by the Government
of Sindh on the recommendation of the SPSC, Rule 5 of the 1994 Rules stipulated
that appointments to the judicial service would thenceforth be made on the
recommendation of the Provincial Selection Board. The Provincial Selection
Board was defined in Rule 2(e) to mean "the Administrative Committee of
the High Court or a Committee of not less than three High Court Judges
specially constituted for the purposes of these rules by the Full Court". The Rules also provided
for other matters including promotions, seniority, transfer and discipline.
However, the present controversy before us is confined to the method of
appointment of judicial officers.
5. The Government of Sindh,
vide Notification No. SOR-I(5GA&CD)2-3/9, dated
4.12.2008 (the "impugned Notification"), again gave the SPSC a
significant and over-bearing role in the recruitment of Judges in the Sindh
judicial service. This has been done by stipulating in Rule 5 that recruitments
to the posts of Civil Judges and Judicial Magistrates shall be made by initial
appointment through the SPSC on the requisition of the High Court of Sindh.
6. The respondents were aggrieved of the
amendments made in the Sindh Judicial Service Rules, 1994, through the impugned
Notification. They, therefore, challenged the constitutional validity of the
said Notification before the High Court. It was their case that these
amendments were violative of the constitutional imperative requiring separation
of the Judiciary from the Executive and thus adversely affected the
independence of the Judiciary. The respondents, therefore, prayed that the
impugned Notification be struck down on the ground that the same was ultra
vires the Constitution and in particular, was inconsistent with Articles 4, 9,
14, 175 and 203 of the Constitution. For ease of reference, we can state here
the relevant parts of the latter two articles, Article 175(3) of the
Constitution commands that "[t]he judiciary shall be separated
progressively from the Executive within fourteen years from the commencing
day," and Article 203 states that "each High Court shall supervise
and control all Courts subordinate to it."
7. According to the respondents, the conferment
of the power of selection on the SPSC and the power of appointment on the
Government, coupled with the withdrawal of power from the Provincial Selection
Board amounted to an unconstitutional encroachment on the independence of the
judiciary. The case of the Province, however, was that the amendments did not
adversely affect the independence of the Judiciary or its separation from the
Executive. The appellants and the respondents, both reaffirm before us, their
respective positions taken in the Sindh High Court.
THE ISSUES:
8. The controversy between the parties is thus
greatly narrowed down in view of the above. If indeed the amendments in the
1994 Rules and the consequent elimination of the High Court from the process of
selecting and appointing judicial officers amounts to negation of the
separation of the Judiciary from the Executive or if it constitutes an
encroachment on the independence of the judiciary, then the impugned
Notification would have to be struck down and the judgment of the Sindh High
Court will be affirmed. In other words, the question before us is quite
straightforward: has the impugned Notification contravened the constitutional
provisions requiring the independence of the judiciary and its separation from
the executive? A consideration of established precedent, as well as the
historical perspective in which the original 1994 Rules were framed, brings us
to answer this question in the affirmative. We shall presently explain both
these grounds on the basis of which, the appeals have been dismissed.
(a) The Link between Independence of the Judiciary and the Process
of Appointment of Judges:
9. Our constitutional Courts have consistently held
that the process of appointments to the judiciary must be carefully scrutinized
through the lens of constitutional principles such as the principle of
separation of powers. In the Al-Jehad Trust case, this Court stated with
reference to appointment of judges of the superior judiciary "...that the
independence of the judiciary is inextricably linked and connected with the
process of appointment of judges and the security of their tenure and other
terms and conditions." (PLD 1996 SC 324, 429) Although this was said in
the context of appointment to the High Court, the principle applies with equal
force to all judicial appointments, including those in the District Judiciary.
Accordingly, the dictum laid down in the Al-Jehad case was soon reaffirmed by
this Court in the case of Mehram Ali & Others v. Federation of Pakistan
(PLD 1998 SC 1445, 1474) and Sh. Liaquat Hussain v. Federation of Pakistan (PLD
1999 SC 504, 658), both cases which concerned the District judiciary. The
aforesaid dictum has also been recently reiterated in Sindh High Court Bar
Association v. Federation of Pakistan (PLD 2010 SC, 879, 1182) and Munir
Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). In the latter case,
the Court, after examining the case law, concluded that "it is an
undisputed tenet of our Constitutional scheme that in matters of appointment,
security of tenure and removal of Judges the independence of the Judiciary
should remain fully secured." (PLD 2011 SC 407, 467)
10. The aforesaid principle would in itself be
enough to bring us to the conclusion that the impugned Notification, which
takes away the power of selection from the High Court and gives it to the SPSC
does not meet Constitutional standards which have, by now become part of our
jurisprudence. The method of making appointments of judicial officers attempted
through the impugned Notification has the effect of negating the independence
of the judiciary and the separation of powers envisaged in Articles 175 and 203
of the Constitution because the High Court is neither involved in the selection
of Judges nor in their appointment. The former function is meant to be
performed by the SPSC and the latter by the Sindh Government.
(b) Reading the 1994 Rules in their
Historical Backdrop.
11. The historical context in which the 1994
Rules were framed makes the point clearer. It should be recalled that the 1994
Rules were framed in the wake and as a result of judgments by the Sindh High
Court and the Supreme Court. Consistent with established precedent the role
constitutionally envisaged for the High Courts in the judicial appointments
process cannot lawfully be substituted by the SPSC because that would go
against the concept of an independent judiciary separate, in a real sense, from
the Executive. Particularly important are the two Sharaf Faridi cases: Sharaf
Faridi v. Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404) and
the appeal against the aforesaid decision reported as Government of Sindh v.
Sharaf Faridi (PLD 1994 SC 105). In these cases, firstly the High Court and
then the Supreme Court defined the implications of the constitutional
provisions dealing with independence of the judiciary and its separation from
the Executive. The relevant extracts from these cases have been reproduced in
the impugned judgment. Some may usefully be reiterated at this point. In the
cited case the High Court held that "the supervision and control over the
judiciary vested in the High Court under Article 203 of the Constitution,
keeping in view Article 175, is exclusive in nature,...any ... notification
empowering any executive functionary to have ... control over the subordinate
judiciary will be violative of above Article 203 of the Constitution. Besides
it will militate against the concept of separation of powers and independence
of judiciary..." In appeal, the Supreme Court re-affirmed the
constitutional imperative by observing that "separation of the Executive
from the Judiciary was an obligation cast ... by the Constitution and this
obligation could not be willed away or avoided. It had, willy nilly to be
carried into effect despite all the difficulties." The context of the case
was the separation of the executive magistracy (and its control by the
Executive), from the judicial function, but the lines of such separation were
clearly delineated. These pronouncements were unambiguous and provide the norms
to be adhered to in the appointment process for the District Judiciary.
12. The Court gave a well defined meaning and
outlined the scope of the separation of powers and judicial independence
mentioned in our Constitution. It is in the backdrop of the judicial
pronouncements referred to above, and the interpretation of the Constitution
made therein, that the 1994 Rules for the recruitment of judicial officers were
framed. The 1994 Rules must therefore be analysed in the same context. As has
been noted earlier, the original 1974 Rules of general application were
applicable to the recruitment of judicial officers also. The judgments of the
Sindh High Court and of this Court in the case of Sharaf Faridi were the direct
cause for making changes in the 1974 Rules and for framing the 1994 Rules. This
is evident from the judgment of this Court in 1994 wherein steps taken by the
Government of Sindh have been noted and it has also been observed that
"Rules for appointment and transfer etc. of judicial officers have been
drafted and are likely to be approved by the High Court soon." It was in
fact, during the pendency of the case before this Court that the Provinces including
Sindh initiated the process of separating the Judiciary from the Executive. The
Sindh Government also modified the 1974 Rules and in addition, framed the 1994
Rules which include Rules 4 and 5 relating to the selection and appointment of
Judges in the District Judiciary. The Rules adverted to by this Court in Sharaf
Faridi's case are in fact, the 1994 Rules as is evident from the correspondence
on record between the Sindh Government and the High Court in 1993-94. In any
event, the fact that the 1994 Rules emerged in the background of the two Sharaf
Faridi cases is uncontested before us. Even the Province of Sindh,
acknowledges it. The learned Advocate General has specifically stated in his
written submissions that"...the required notification[s] were issued in terms
of the judgment passed by the Larger Bench of the Honourable High Court of
Sindh" in the case of Sharaf Faridi (para 4 (f), Synopsis on behalf of the
Province of Sindh).
13. The changes made by the 1994 Rules to the
process of appointment of judges are, therefore, to be considered a
contemporaneous statutory exposition of Articles 175 and 203 of the
Constitution and the interpretation given to these in the Sharaf Faridi. cases. Being contemporaneous, this exposition enjoys a great
deal of sanctity and cannot lightly be set aside in favour of a materially
different expression. The value attached to such contemporaneous exposition is
well-settled in our jurisprudence. An accepted authority on the interpretation
of statutes notes this in no uncertain terms: "... the best exposition of
a statute or any other document is that which it has received from contemporary
authority. Where this has been given by enactment or judicial decision, it is
of course to be accepted as conclusive." (Maxwell on the
Interpretation of Statutes, 11th Ed. (Sweet and Maxwell Limited: 1962), p. 296,
Chapter 11). In Hakim Khan's case, this Court inferred such a
relationship between the Preamble encapsulating the Objectives Resolution and
the 1973 Constitution, the latter being a contemporaneous exposition of the
former. The Court stated: "...after the adoption of the Objectives
Resolution on 12th March,
1949, the Constitution-makers were expected to draft such
provisions for the Constitution which were to conform to its directives and the
ideals enunciated by them in the Objectives Resolution and in the case of any
deviation from these directives ... the Constituent Assembly... [itself] would [have] take[n] the necessary remedial steps
...to ensure compliance with the principles laid down in the Objectives
Resolution." Hakim Khan and Others Vs. Govt. of
Pakistan and others (PLD 1992 Supreme Court 595, 619). In the present case, we
are brought to the conclusion that the structural features of the 1994 Rules
were a contemporaneous exposition of judicial pronouncements about Articles 175
and 203 in the Sharaf Faridi cases.
14. These features highlighting the change
brought about by the 1994 Rules may now be closely examined to get a better
idea of the meaning of Articles 175 and 203. As has been noted above, prior to
the 1994 Rules, judicial officers in Sindh were appointed by the Provincial
Government on recommendations made by the Sindh Public Service Commission. The
High Court had no say in the process. It is as an undisputed consequence of the
Sharaf Faridi cases that changes were brought about in the process of
appointments to the Sindh judicial service. The fundamental change that the
1994 Rules brought about, was that the High Court of
Sindh was made a key institution having a crucial role in the appointment of
judges. The 1994 Rules, in draft form, were before the Supreme Court and were
noted with satisfaction as is clear from the report of the case (at p.113). The
1994 Rules, it may be seen, made express stipulation that the Provincial
Selection Board which was comprised of Judges of the High Court of Sindh would
select the judicial officers for appointment to the judicial service and the
Government would make their formal appointments in accordance with Rule 4 of
the 1994 Rules. No appointments to the Sindh judicial service were, therefore,
possible under the 1994 Rules unless recommended by the Provincial Selection
Board comprising exclusively of Judges of the Sindh High Court. This background
which was part of the defining precedent in the case of Sharaf Faridi has been
elaborately referred to and commented upon in the impugned judgment.
15. The foregoing discussion makes it clear that
the dispensation envisaged in the 1974 Rules did not meet the constitutional
benchmark for the independence of the Judiciary and its separation from the
Executive. This standard was satisfied only by the above-mentioned structural
change, brought about through the 1994 Rules. It only follows from this that
anything which reverses this fundamental change by making judicial appointments
the exclusive preserve of the Sindh Government and the SPSC, would amount to a
violation of the constitutional imperative. The impugned Notification dated
4.12.2008 is unconstitutional for precisely this reason. It reverts the process
of appointing judicial officers in Sindh (in essential particulars), to the
situation which was prevalent prior to 1994. In this dispensation, the
government makes appointments while the selection is done through the SPSC. The
High Court has been left with no role in the selection and appointment of
Judges in the Sindh judicial service. The High Court can, at most, trigger the
process of appointment by making a requisition, but the Court itself has no say
either in the selection of judicial officers for recruitment in the judicial
service or in their appointment. We have no hesitation in following precedent
and in adhering to the constitutional principles enunciated therein. As a
consequence, we hold that the impugned Notification dated 4.12.2008 and the
amendments made thereby in the 1994 Rules, are ultra vires the Constitution and
of no legal effect. The said Notification and the amendments thereby made have
rightly been struck down on this ground by the High Court of Sindh.
16. This does not imply that every province is
obliged to adopt a uniform method for the selection and appointment of judicial
officers. It is a hallmark of our federal Constitution that each federating
unit is free to carve out its own policy and practice in such matters. `Parity'
between the federating units as urged by the learned Advocate General, Sindh is
not required and would be contrary to the federal nature of our Constitution.
The only requirement is that the policy and practice adopted by each Province
must conform to constitutional imperatives elaborated in Articles 175 and 203
and the relevant precedents - which demand, inter alia, that the High Courts
must retain a significant degree of `control' over the appointment and
selection process of judicial officers.
EXECUTIVE
AUTHORITY: TRICHOTOMY:
17. With great respect for the learning and
erudition of the learned five member Bench of the High
Court, we do wish to differ with certain observations and findings relating to
the "past performance" of the SPSC given by the learned Bench. In
para 35 of the impugned judgment, the Court has cited certain comments filed by
the Government of Sindh and a report prepared by Mr. Justice Faisal Arab, to
conclude that these "speak[] volumes about the mismanagement and mal-practices
prevalent in the said Commission." The High Court has also stated its
opinion that "... experience show [that the SPSC] has remained under the
influence of the Executive and on several occasions successfully given results
as per their expectations or to say the least, on considerations other than
merits" (para 66). At the end of the judgment, the High Court felt it
necessary to go beyond the plea of the petitioner's counsel and record its
finding that the impugned Notification was not just mala fide in law, but also
mala fide in fact (para. 87). With due respect to the learned Judges, these
observations and conclusions raise some fundamental constitutional questions,
inter alia, as to the scope of judicial review of administrative action and the
constitutionally mandated trichotomy of state functions. That the SPSC is an
executive body is quite enough to show that it cannot, under our constitutional
scheme, be vested with the exclusive power to select judicial officers. Moreso, when the
Government (as per Rule 4) is obliged to appoint the persons so
selected. The observations of the High Court adverted to above, however, go
beyond this principle and can be seen as blurring the separation of powers.
JUDICIAL REVIEW:
18. In the exercise of its jurisdiction under
Article 199 of the Constitution, the High Court was called upon only to judge
the legal and constitutional validity of the impugned Notification. Passing
judgment on the competence or good faith of the SPSC or over the SPSC's
performance as an institution, past or present we say with respect,
was not called for in this case. By passing these remarks, the Court has risked
tainting the institutional credibility of SPSC on the basis of specific or
unspecified incidents adverted to by the High Court, which would be amenable to
correction through judicial review. Such taint in turn, creates far-reaching
repercussions effecting well settled constitutional principles. When a forum no
less lofty than a five member Bench of the High Court puts it in writing that
the Commission is blighted by "mismanagement and mal-practices" and
makes appointments on "considerations other than merits," then it is
only natural that innumerable professionals who are regularly examined by the
SPSC, be they teachers, doctors, accountants, revenue officers etc, would flock
to the Courts seeking to get the decisions of SPSC overturned based on the
authority of a full Bench of the High Court. Such a situation would be both
inconsistent with precedent and constitutionally questionable, given the
doctrine of separation of powers which requires that the three organs of the
State are considered coordinate and co-equal.
19. The SPSC, it should be noted is an executive
authority and a singularly important institution. It was created by the Sindh
Public Service Commission Act, 1989 (XI of 1989), an act passed in exercise of
powers specifically conferred by the Constitution. The institutional importance
of a Public Service Commission becomes clearer when we notice that such
Commissions have been specifically mentioned in all of Pakistan's
Constitutions. Article 242 of the 1973 Constitution stipulates that the
...Provincial Assembly of a Province in relation to affairs of a Province, may,
by law, provide for the establishment and constitution of a Public Service
Commission... (2) A Public Service Commission shall perform such functions as
may be prescribed by law."
20. The SPSC, to which certain functions of the
Provincial Government of Sindh have by law been delegated under Article 138 of
the Constitution, has correctly been deemed by the High Court as an executive
authority. It is clearly performing an executive function and for this very
reason, it cannot be given the task of making appointments to the Judicature.
It may, however, be noted that while it remains a part of the Executive branch,
for the effective discharge of its duties, it has been provided a certain
degree of autonomy from the political executive. Where such
autonomy is unlawfully impinged upon by the Executive in a given situation, the
remedy lies in rectifying the specific situation under Article 199 of the
Constitution, rather than declaring an Executive body to be incompetent or to
be acting mala fide.
21. The SPSC as specifically envisaged in the
Constitution and the SPSC Act has the backing and mandate of Article 242 of the
Constitution. The High Court undoubtedly has the power to exercise judicial
review over specific selections/recommendations made by SPSC. Such review,
however, will have to be situation specific and secondly will need to meet the
well settled criteria justifying such review. An illegal decision taken by the
SPSC while selecting District Attorneys or Prosecutors for the Sindh Government
can thus easily be set-aside by, the High Court in exercise of powers of
judicial review vested in it under Article 199 of the Constitution. A specific
selection or set of selections can also be reviewed judicially on the ground of
malice in fact, if there is sufficient material to establish such malice.
However, in view of the constitutional principle of trichotomy of powers, a
High Court would not be in a position to negate the powers of an executive body
such as SPSC which, as noted above, has the backing of an enactment passed by
the provincial legislature in accordance with Article 242 of the Constitution.
We, therefore, are of the opinion, that the general observations, comments and
conclusions drawn in respect of SPSC by the High Court were not appropriate or
necessary in the facts and circumstances of the present appeals. We have felt
the necessity of reiterating the constitutional structure of separation of
powers between the Executive, the Judiciary and the Legislature to ensure that
the selections/recommendations, past and future, made by the SPSC are not
subjected to litigation and judicial review on the basis of the observations
and conclusions made by a five member Bench of the Sindh High Court, This does
not, in any manner, restrict the case-specific power of judicial review vested
in the High Court under Article 199 of the Constitution and to examine the
actions of the SPSC.
22. For the
foregoing reasons, while these appeals have been dismissed for the reasons
noted above, certain remarks and observations made by the High Court in respect
of the SPSC have not been affirmed.
(R.A.) Appeals
dismissed
