ISLAMABAD: The Judicial Commission of Pakistan’s (JCP) decisions regarding elevation of judges to the superior courts cannot be challenged through petitions before high courts under the Constitution, the Supreme Court held on Saturday.
“By no stretch of imagination can it be assumed that framers of 18th and 19th amendments envisaged that decisions of JCP would be made amendable to judicial review by way of constitutional petitions filed under Article 199 of the Constitution,” Justice Ijazul Ahsan noted while deciding an appeal of a judge regarding his challenge to JCP decision.
Justice Ijaz was heading a two-member SC bench that had taken up the appeal of former additional judge of the Islamabad High Court and district and sessions judge Mohammad Azim Khan Afridi, who had challenged the Oct 22, 2012 decision of the JCP against his confirmation as an IHC judge.
Mr Afridi’s petition against the JCP recommendation was rejected by the Peshawar High Court (PHC) on Sept 5, 2017.
In his petition, he had urged the PHC to declare JCP’s decision ‘illegal’ and ‘incompetent’ and that the president should notify his name as judge of the IHC. As the PHC rejected his plea, he approached the Supreme Court against the PHC order.
Justice Ahsan, in the judgement, explained that the JCP was not a court, the decisions of which could be made the subject of superintendence by the high courts for the purpose of exercising “certiorari” – a writ by which a higher court reviews a case tried in a lower court – under Article 199 of the Constitution.
“Whenever a high court exercises its constitutional jurisdiction for the purposes of certiorari, it is in fact directing a court under its superintendence to correct any error of law or jurisdiction in a judgment assailed before it in such a manner that the same order or judgment can be certified by the same high court,” Justice Ahsan observed.
However, he added, while certiorari may be a prerogative of the high court under Article 199, it was still a “discretionary power”.
Moreover, Justice Ahsan emphasised, the petitioner cannot claim a vested right to be confirmed as judge of IHC on the sole ground that the then chief justice of the high court had recommended him for confirmation.
A recommendation from the chief justice of a high court is nothing but a process of procedure and any recommendation by the concerned chief justice for confirmation needs to be deliberated and ultimately voted on by JCP before a name was either confirmed or dropped by a majority vote of the commission, Justice Ahsan observed.
Even if it is to be assumed that a decision of JCP was amenable to judicial review under Article 199 of the constitution, the Supreme Court has already found the JCP’s decision — the subject matter of this petition — without any legal or jurisdictional defect, Justice Ahsan observed adding the constitutional petition of the petitioner therefore was bound to fail.
Referring to the PHC order, Justice Ahsan observed it was well-reasoned judgment which had taken note of all material aspects of the case and has assigned valid and legally sustainable reasons for dismissing the petition.
“We have arrived at the same conclusion and find no reason or basis as a ground of justification to take a different view,” Justice Ahsan observed while dismissing the petition.
Published in Dawn, December 11th, 2022
