CONSTITUTIONAL LAW

SUBMITTED BY;

Syed Muhammad Ibrahim Hassan

ROLL NO. 285

SEMESTER: 7TH (B)

SUBMITTED TO;

SIR SUHAIL SHAHZAD

KHYBER LAW COLLEGE, UNIVERSITY OF PESHAWAR

Appointment of Judges of the High Court:
After the 18th amendment, the appointment of Judges to the higher judiciary is made through the
Judicial Commission and Parliamentary Committee. Prior to 18th amendment, appointment to
the Supreme Court and High Courts was made exclusively on the will of the Chief Justice of the
respective Court, who used to take his colleagues into confidence and nominate a person for the
vacancy available. Such nomination was made in consultation with the President who could
refuse to assent only after recording solid reasons for his doing so. After the insertion of article
175A to the constitution, the mode of appointment of Judges has been particularized and a proper
mode has been set out in which there are two bodies, one is The Judicial Commission and the
other is Parliamentary Committee which includes members from Judicial, Executive and
Legislative branch of the government. This method of appointment of Judges does not offend the
Independence of Judiciary as the majority of the members in the Judicial Commission is of the
members from the Judiciary. The nomination made by the Judicial Commission has to be made
by simple majority of the members while if the Parliamentary Committee wants not to confirm
the nomination, it must do so with a three-forth majority which means 6 out of 8 total members
shall dissent the nomination. So practically, the ball is still in the court of Judiciary for the
appointment of Judges to the higher judiciary however which has been now subjected to few
checks and balances by involvement of the Executive and Legislative branches into the
Commission and Parliamentary Committee.
Discreti on of President:

Once the nomination is put beofre the President after being passed from the Commission and
Committee, the President has no other way except to give assent to the nomination.
Appointment before 18th amendment:

Before the 18th amendment, the process of appointing Judges in high courts and Supreme Court
of Pakistan was clearly controlled and dominated by the top authority of the judiciary Chief
Justice of Pakistan and was said to be lacking the necessary checks and balances.
The process of judicial appointments in the constitution, before the passage of the 18th
amendment, was that the chief justice of the Supreme Court recommended a panel of Judges to
the president, who selected a suitable candidate from that panel. Similarly, for the appointment
of Judges in the high courts, the chief justice of the concerned high court forwarded a panel of
Judges to the president which was channelled through the governor of the province and the chief
justice of Pakistan. This whole procedure gave a key role to the chief justice of Pakistan as well
as the provincial chief justices, while the signing authority (president and governor) remained a
formality.
Judicial Commission

There shall be a Judicial Commission of Pakistan for appointment of Judges of the Supreme
Court, High Courts and Federal Shariat Court.
Appointment of Judges of High Court

For appointment of Judges of the High Court, the Judicial Commission shall consist of
1. Chief Justice of Pakistan who shall act as the chairman of the Commission.
2. Four most senior Judges of the Supreme Court, who shall act as members.
3. A former Chief Justice or a former Judge of the Supreme Court to be nominated by the Chief
Justice of Pakistan, in consultation with the four member Judges, For a term of 2 years.
4. Federal minister of law and justice
5. Attorney General for Pakistan
6. A senior Advocate of the Supreme Court nominated by Pakistan Bar Council for a term of
two years
7. Chief Justice of High Court to which the appointment is being made
8. The most senior Judge of that High Court
9. Provincial minister for law
10. 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.
Appointment of Chief Justi ce of the High Court

For appointment of The Chief Justice of the High Court, the Senior most Judge of the High Court
shall not be the member of the Commission.
If for any reason, the Chief Justice of a High Court is not available, he shall be substituted by a
former chief or former Judge of that Court which is to be nominated by the Chief Justice of
Pakistan in consultation with the four member Judges of the Commission.
Appointment of Judges of Islamabad High Court

For the appointment of Judges of High Court, the Judicial Commission shall consist of the
following:
1. Chief Justice of Pakistan who shall act as the chairman of the Commission.
2. Four most senior Judges of the Supreme Court, who shall act as members.
3. A former Chief Justice or a former Judge of the Supreme Court to be nominated by the
Chief Justice of Pakistan, in consultation with the four member Judges, For a term of 2
years.
4. Federal minister of law and justice
5. Attorney general for Pakistan
6. A senior advocate of the Supreme Court nominated by Pakistan bar council for a term of
two years
7. Chief Justice of the Islamabad High Court
8. The most senior Judge of Islamabad High Court
Appointment of Chief Justi ce of Islamabad High Court

For the appointment of Chief Justice of the Islamabad High Court, the Senior most Judge of the
Court shall not be the member of the Commission.
If for any reason, the Chief Justice of Islamabad High Court is not available, he shall be
substituted by a former chief justice or former Judge of that Court which is to be nominated by
the Chief Justice of Pakistan in consultation with the four senior most Supreme Court member
Judges of the Commission.
Nominati on to be sent to Parliamentary Committ ee

The Commission by majority of its total membership shall nominate to the parliamentary
committee one person, for each vacancy of a Judge in the High Court.
Members of the Parliamentary Committ ee

The parliamentary committee shall consist of

 Four members from senate
 Four members from National Assembly
Out of the 8 members of the committee, 4 shall be from treasury benches, 2 from each house and
4 shall be from opposition benches 2 from each house.
Nominati on of members how made

Nomination from the treasury bench shall be made by the leader of the house.
Nomination from the opposition bench shall be made by the leader of the opposition.
Secretary of the Committ ee

Secretary of senate shall act as secretary of the committee.

Procedure of the committ ee

The committee on receipt of a nomination from the Commission may confirm the nominee by
majority of its total members within fourteen days, failing which the nomination shall be deemed
to have been confirmed.
The committee may not confirm the nomination by three-forth majority of its total membership
within said period, but the reasons for it must be recorded.
If the committee does not confirm the nomination it shall forward its decision with the reasons so
recorded to the Commission through 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 whi 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 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.
Conclusion:

As studied above, now the appointment of Judges of the higher judiciary is made through Judicial
Commission and the Parliamentary Committee. The appointment is now subjected to some chexks and
balances by involvement of executive and legislature in the procedure. However, as the majority of
members of the Judicial Commission are from the judiciary, the will of the judiciary prevails because the
judicial commission needs a simple majority for a nomination of a Judge while the parliamentary
committee needs three forth majority to refuse a nomination.