RAJA SAEED AKRAM KHAN, C.J. This judgment follows our short order dated 07.10.2021 which reads as follows:-- "For the reasons to be recorded later on, this appeal is accepted and the impugned judgment of the High Court is set-aside with the observations that none of the provisions of the State Judicial (Policy Making) Committee Act, 2017, has been found inconsistent with the Constitution, which is a pre-requisite for striking down any law enacted by the Legislature. Furthermore, no mala fide can be attributed to the Legislature.
2. The Legislative Assembly of the Azad Jammu and Kashmir passed an Act bearing No.LD/Legis- Act/659-72/2017 known as the State Judicial (Policy Making) Committee Act, 2017 (Act XXXVIII of 2017], on 13.09.2017. Through this Act the State Judicial (Polity Making) Committee (hereinafter to be referred as the "Committee") was constituted, which comprises of the following:-- Chief Justice of Azad Jammu and Kashmir Chairman (i)Senior Most Judge of Supreme Court. Member (ii)Chief Justice of High Court/Shariat Court Member (iii)Senior Most Judge of High Court Member (iv)Secretary Law, Justice, Parliamentary Affairs and Human RightsMember According to section 4 of the Act, the Committee shall co-ordinate and harmonize judicial policy within the Court system, and in co-ordination with the Commission, ensure its implementation; and shall perform the following functions:-- improving the capacity and performance of the administration of justice; setting performance standards for judicial officers and persons associated with performance of judicial and quasi judicial functions;
(c) improvement in the terms and conditions of service of judicial officers and Court staff, Co ensure skilled and efficient judiciary; and
(d) publication of the annual or periodic reports of the Supreme Court, High Court, Shariat Court and Courts subordinate to High Court and Administrative Courts and Tribunals.
The respondents, herein, who are professional lawyers, challenged the validity of the aforesaid Act by filing a writ petition before the High Court. It was contended by them that the Azad Jammu and Kashmir Interim Constitution, 1974 (Constitution) has clearly mandated the powers of Supreme Court and the High Court. The High Court is the sole Superintendent and has control over all other subordinate Courts, hence, promulgation of the aforesaid legislation amounts to violate the Constitution. The official respondents have attempted to amend the Constitution through subordinate Legislation, which is liable to be set aside. The writ petition was contested by the other side. After necessary proceedings, the learned High Court through the impugned judgment dated 05.11.2020 accepted the writ petition and set-aside the impugned Act of the Legislative Assembly being contrary to the constitutional provisions. The appellant, who is a practicing lawyer has challenged the impugned judgment of the High. Court by way of instant appeal by leave of the Court.
3. The appellant himself appeared and argued the case. According to him, he is a practicing lawyer and believes in the supremacy of law. He argued that the learned High Court has illegally set-aside the impugned legislation. The disputed Act has been struck down from the statutes book on the main ground that it offends the provisions of Article 46(1) of the Constitution which empowers the High Court of Azad Jammu and Kashmir to superintend and control all other Courts subordinate to it. The learned counsel while reading section 4 of the disputed Act argued with vehemence that no administrative control has been given to the Committee rather the Committee has been established to improve the capacity and performance of the administration of justice, to set performance standards for judicial officers, to improve the terms and conditions of service of judicial officers and to publish the annual or periodic reports. He added that neither the impugned legislation is an embargo on the powers of the High Court relating to posting, transfer and appointments nor the independence of the judiciary has been taken away. In this state of affairs, the learned High Court has erred while handing down the impugned judgment. He further added that due to the impugned judgment of the High Court the public at large is going to suffer. He lastly argued that the legislation, like the disputed one, is also holding the field in Pakistan. The matter had come up before the Islamabad, High Court, however, the writ petition was dismissed against which the Supreme Court of Pakistan refused to grant leave. The learned High Court also badly failed to take into account this important aspect of the matter. In support of his contentions, he referred to the cases reported as Eh. Liaqat Hussain and others v. Federation of Pakistan and others. [PLD 1999 SC 504] and Azad Govt. and others v. Genuine Rights Commission of AJ&K and others [1999 SCR 1].
4. Raja Muhammad Waseem Younas, the learned Additional Advocate-General supported the arguments advanced by the appellant.
5. Mr. Fayyaz Ahmed Janjua, Advocate/ respondent No.1 submitted that the impugned judgment of the High Court is well in accordance with law. Under Article 46(1) of the Constitution; the High - Court shall superintend and control all Courts sub-ordinate to it, whereas, the impugned legislation has snatched these powers. He further added that the impugned legislation amounts to create a parallel legal system against the existing framework of the Constitution regarding system of administration of justice. He further submitted that in the Committee, an officer of the Executive i.e., Secretary Law, Justice, Parliamentary Affairs and Human Rights, as its member has been included, whereas, the judiciary is separated from the executive, hence, introduction of an officer of the executive in the formation of the Committee damages the concept of separation of powers within- different organs of the State as enshrined in the Constitution. The concept of independence of judiciary has also been violated. -So far as the enforcement of Judicial Policy in Pakistan is concerned, the same cannot be linked with the Azad Jammu and Kashmir. In Pakistan the number of High Courts is more than one, hence, the Committee was constituted to avoid conflict in the judicial policy in judicial system among all the units of Federation of Pakistan, whereas, in Azad Jammu and Kashmir there exists only one High Court. He further added that the constitution of Committee even otherwise is illegal as any guideline or direction issued by it cannot be challenged because the case, so instituted, may not be decided independently when the Chief Justice presides over the meetings of the Committee attended by other Judges of the superior judiciary.
Furthermore, the provisions of the Act which required the Chief Justice of Azad Jammu and Kashmir to be the Chairman of the Committee are in conflict with the basic structure of the Constitution.
6. Raja Amjad Ali Khan, Advocate, the learned counsel representing respondents. Nos. 2 and 3 defended the impugned judgment by submitting that the same is detailed one and based upon solid reasons. He added that the impugned legislation amounts to lower down the authority of the Supreme Court because under the Constitution the Supreme Court is the highest Court of appeal, hence, inclusion of the Chief Justice and Senior Judge of the Supreme Court in such like Committee amounts to degrade the status of the Supreme Court. He further added that in the Committee, the Secretary Law, Justice, Parliamentary Affairs and Human Rights has also been included as Member, whereas, on the basis of trichotomy of powers, his inclusion in the Committee as member is not justified at all. It is also against the concept of independence of judiciary. The impugned judgment passed by the High Court is not open for any interference, hence, this appeal is liable to be dismissed.
7. In the light of arguments of learned counsel for the parties, we have perused the record. By now, it is almost settled that a piece of legislation can be invalidated by. the Court only when the same is found inconsistent with the Constitution or where there is violation of any of the fundamental rights. In the case reported as Fauji Foundation and another v. Shamimur Rehman [PLD 1983 SC 4571, it has been held that:-- "Therefore, when a Court, which is a. creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instruction "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instruction is in conflict with the Constitutional provision so as to give effect to it or where the Legislature tails to keep within its constitutional limits."
In Elahi Cotton Mills Ltd. v. Federation of Pakistan [PLD 1997 SC 582] it has been held that:- ".......the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex facie it is violative of a constitutional provision."
The main stance of the respondents is that the impugned legislation is violative of Article 46(1) of the Azad Jammu and Kashmir Interim Constitution, 1974, which provides that the High Court shall superintend and control all the other Courts subordinate to it. The presumption of learned counsel for the respondents is that the impugned legislation has snatched these powers from the High Court and handed over the same to the Committee, which has also violated the concept of independence of judiciary. In order to judge the validity of this argument, it is appropriate to discuss the purpose of establishment of the Committee.
8. Under the constitutional scheme based upon the concept of separation of powers and to run the affairs of the State efficiently according to aspiration of State Subjects, three main organs of the State i.e., the Legislative, the Executive and the Judiciary have been conferred powers to perform their respective functions without overstepping the constitutional mandate. The legislature is given powers to make laws in shape of Acts whenever there arises need to confer rights and impose responsibilities upon State Subjects, institutions, departments and other segments of the society, as per collective will of the State. Except divine law, that too at times has exceptions, no law of the land remains forever as constant and unamendable. Law has to conform with emerging dictates of time, realizing and acknowledging the emerging issues and barriers in the way of smooth, transparent and just functioning of respective systems and society in general according to corresponding aspirations of the State Subjects. Reforms and progression of institutions and governing systems cannot be clogged up just on assumption of mere ostrich optimism unless confidence of public at large is maintained in respect of functioning of that very institution. Due to enormous challenges posed to the other organs of the State and the Government and that very specialized nature and magnitude of the responsibilities of the judicial system much attention could not be paid to the judicial system of Azad Jammu and Kashmir to deal with the emerging challenges and issues faced by it. It seems that realizing the challenges and emerging issues posed to the judicial system of Azad Jammu and Kashmir, the legislature of AJ&K felt it expedient to make enactment in this regard by empowering the superior judiciary of AJ&K to assess better the problems of the judicial system and its all components and suggest -and make policies for more efficient working of the judiciary and its allied limbs as per public aspirations and confidence.
In order to achieve these noble goals, the legislature has enacted the impugned Act, the purpose of which is to constitute a high-level Committee to co-ordinate and harmonize the judicial policy within the Court system and in co-ordination with the Azad Jammu and Kashmir Law Commission, ensure its implementation. The Committee has to work for improving the capacity and performance of the administration of justice; setting performance standards for judicial officers and persons .associated with performance of judicial and quasi-judicial functions; improving the terms and conditions of service of judicial officers and Court staff, to ensure skilled and efficient judiciary; and publishing the annual or periodic reports of the Courts. Nothing is provided in section 4 of the impugned legislation which violates the independence of judiciary as enshrined in the Constitution. In fact, the very purpose of the Committee is to formulate a policy appliable to all over the Azad Jammu and Kashmir vis-a-vis to scrutinize the performance of judiciary as an Institution and the legislature keeping in view the sanctity of independence of judiciary assigned the referred task to the Judiciary by means of a Committee. No person of a prudent mind can accept that how the constitution of such like Committee, which has to work for betterment of the administration of justice, efficient disposal of the cases and ensuring the efficient and skilled judiciary, is against the concept of independence of judiciary. In fact, the thrust of constitution of the Committee is to consolidate and strengthen the concept of independence of judiciary. The concept of independence of judiciary was dilated upon by the Supreme Court of Pakistan in the case reported as Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan [2014 SCMR 1289], wherein, the apex Court observed as follows:- 'Judicial independence both of the individual Judge and of the Judiciary as an institution is essential so that those who bring their causes/cases before the Judges and the public in general have confidence that their cases would be decided justly and in accordance with law. Judicial independence is one of the fundamental values of the Constitution of Islamic Republic of Pakistan which is based on trichotomy of powers in which the functions of each organ of the State have been constitutionally delineated. The very Preamble of the Constitution pledges "wherein the independence of judiciary shall be fully secured". The Constitution makers conferred this independence because they wanted the Judges to "do right of all manner of people, according to law, without fear or favour, affection or ill-will"
(Oath of office of Judges). The fundamental right guaranteed under the Constitution cannot be secured unless Judiciary is independent because the enforcement of these rights has been left to Judiciary in terms of Articles 184(3) and 199 of the Constitution and the relevant law. Judiciary has not been made part of the Executive or the Legislature (Article 7). The separation of Judiciary from the Executive was made a Constitutional mandate (Article 175(3)). So jealously this independence has been guarded that even in the appointment of Judges (Article 175A) and in their removal (Article 209) the primacy is that of the Judiciary. The Judicial Commission is headed by the Chief Justice of Pakistan and its Members comprise of four senior most Judges of the Supreme Court, a former Chief Justice or Judge of the Supreme Court, Chief Justices and senior puisne Judges of the respective High Courts (if the appointment is that of the Judge of the High Court), Minister for Law and Attorney General for Pakistan as also representative of the Bar. The recommendations made by the Judicial Commission are sent to the Parliamentary Committee which is to decide within 14 days, failing which the recommendations made by the Judicial Commission are deemed to have been affirmed. The primacy in the entire process of appointment of Judges is still with the Judiciary. The Court through this judgment in laying down a criterion/guideline to determine the inter se seniority of the Judges of the High Courts has partly been influenced to protect and preserve this seminal Constitutional value."
We would add nothing more in this regard except to hold that when the functions of the Committee provided in the impugned legislation, are judged in view of the principles laid down by the superior Courts in relation to independence of judiciary, it becomes abundantly -clear that the establishment of the impugned Committee is not against the concept of independence of judiciary rather in our estimation, it further empowers the Courts to do the judicial work in a more independent, transparent, reformed and progressive manner.
9. Article 46(1) of the Constitution casts a duty upon the High Court to keep the subordinate Courts within the limits of their authority so that they may not cross the limits, ensuring the performance of duties by such Courts and tribunals in accordance with law conferring power within the/ambit of the enactments creating such Courts. The powers of posting, transfer and appointments are vested in the High Court under this Article. On the other hand, the basic function of the Committee is to improve the capacity and performance of the administration of justice including expeditious dispensation of justice by making policies in relation to clearance of huge backlog of the cases.
The expeditious dispensation of justice is limited not only to the Courts subordinate to the High.
Court but it is also the requirement in the High Court and Supreme Court, due to which a mechanism to co-ordinate and harmonize the Court system was the demand of time. In short, the powers of the High Court to superintend and control over the Courts subordinate to it are alive and the constitution of the Committee has nothing to do with such powers, hence, the impugned legislation by no way curtails the powers of the High Court or violates any of the provisions of the Constitution.
10. It appears that the respondents are under an apprehension that the impugned legislation has been enacted with mala fide intention for ulterior motives. It is settled principle of law that when any person attributes mala fide to the Legislature he must have strong proof otherwise malice cannot be attributed to the Legislature. It has been held by this Court in the case reported as Azad Government and others v. Inhabitants of Village Baghar [2016 SCR 696] that for proving mala fide it should be specifically alleged and to be proved by cogent and reasonable evidence. The presumption of bona fide is attached to the legislation enacted by the Assembly. In this regard, we would like to refer here the case reported as Ch. Yousaf v. The State of AJ&K 2002 CLC 1130, wherein it has been held that:-- "28. We fully endorse the view expressed in the above referred cases that malice cannot be attributed to the legislature without any strong proof. Under the scheme of the Constitution Act law can be enacted either by the Assembly or by the President in exercise of the powers available to him under section 41 of the Constitution Act. The Ordinance promulgated by the President, therefore, has got the same force and effect as that of the Act of the Assembly. The presumption that law is made with bona fide reasons shall therefore apply also to such law which is enforced by the President through an Ordinance. The argument of the learned counsel for the appellants that the impugned Ordinance has been enacted with mala fide intention cannot be entertained in the absence of any evidence in support of such allegation."
Similarly, in the case reported as Fauji Foundation and another v. Shamim-ur-Rehman [PLD 1983 Supreme Court 457] it has been held that:-- ....in order to prove legislature mala fide the party alleging the same must prove it through some evidence before expecting adverse presumption against such legislation otherwise the presumption would be in favour of bona fide intention of the legislature."
The respondents have failed to bring forth any proof that the impugned legislation is result of any mala fide intention, hence, presumption lies that the impugned legislation is based on bona fide.
11. It may be stated here that in Pakistan the National Judicial (Policy Making) Committee Ordinance, 2002, was promulgated in the year 2002. Through this Ordinance the National Judicial (Policy Making) Committee comprising of Chief Justice of Pakistan, as Chairman, Chief Justice, Federal Shariat Court and Chief Justices of High Courts, as members, was constituted. The functions of the Committee provided in the relevant law are of similar nature as are being performed by the Committee constituted in the Azad Jammu and Kashmir. It is worth mentioning that the vires of the aforesaid Ordinance was challenged by one Riaz Hanif Rahi by filing a Writ Petition No.33422/2014 in the Islamabad, High Court. The said writ petition was dismissed in limine on 04.03.2015. The petitioner, therein, filed an Intra Court Appeal (No.137 of 2015). The learned Division bench of the Islamabad High Court after discussion of the case law pertaining to the independence of judiciary dismissed the appeal on 12.11.2015, with the following observations.
"8. The examination of the provisions of the Ordinance on the touchstone of the principles, enunciated by the august Supreme Court of Pakistan, regarding the independence of judiciary and the various provisions of the Constitution shows that none of the sections violate any Article of the Constitution and the principle of independence of judiciary. The mere fact that a policy is framed by the Committee under the Ordinance for the guidance and adherence by the Courts all over Pakistan does not put a clog on the independence of the Courts in any manner."
Against the judgment (supra), the Supreme Court of Pakistan refused to grant leave[1] while upholding the findings recorded by the Islamabad High Court, hence, to ensure efficient working of judicial system of Pakistan a Committee is working at its full swing in the Pakistan, which has also strengthened the basis of establishment of the Committee of like nature in Azad Jammu and Kashmir.
12. One of the reasons, which prevailed with the High Court while handing down the impugned judgment is that in Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 and 227 of the Constitution of India, the words "each High; Court" have been used, whereas, these words are not used in Article 46 of the Constitution of Azad Jammu and Kashmir. The wisdom expressed by the High Court is that in Pakistan the Committee was constituted to harmonize and co-ordinate the judicial system of Pakistan Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 empowers each High Court of Pakistan to frame judicial policy and other matters relating to subordinate Courts which may cause conflict in policy in judicial system among all the units of federation of Pakistan but in Azad Jammu and Kashmir, no such eventuality exists as there is only single High Court in Azad Jammu and Kashmir. Having due regard to the opinion expressed by the High Court in the impugned judgment,' in 'our estimation, the functions of the Committee are clearly postulated/ in the impugned legislation. The Committee has been constituted to co- ordinate and harmonize judicial policy within the Court system. The similar wording has been used in the National Judicial (Policy Making) Committee Ordinance, 2002. The words "Court System" includes the whole system of judiciary. It includes the Supreme Court, High Court, all the subordinate Courts and Tribunals established in Azad Jammu and Kashmir, hence, it cannot be said that there is a single High Court in Azad Jammu and Kashmir due to which co-ordination and harmonization of judicial system is,not possible.
13. The argument of the learned counsel for the respondents that introduction of an officer from the Executive corner in the Committee is against the concept of separation of powers, is also not convincing to our minds. Under Rules of Business, 1985 the Supreme Court, High Court, Shariat Court etc., are the special institutions of the Law, Justice, Parliamentary Affairs and Human Rights Department, hence, the Secretary Law, Justice, Parliamentary Affairs and Human Rights has a very close nexus with the judiciary. He is the person who conveys pleasure or displeasure of the Courts to the Government, hence, he has to act as bridge in relation to the communication of the Government with the Courts. Keeping in view the nature of tasks to be performed by him, he has been included in the Committee to convey the decisions of the Committee to the Government otherwise he has nothing to do with the formation of policies by the Committee rather the policies are made under the supervision of judicial members of the Committee. In this state of affairs, we are not agreed with the argument of the learned counsel for the respondents that introduction of member of the Executive in the Committee is against the concept of separation of powers.
14. Raja Amjad Ali Khan, Advocate, has also attempted to argue that inclusion of the Chief Justice of Azad Jammu and Kashmir and Senior Judge, Supreme Court in the Committee has in fact lowered down the status of Supreme Court. He has also quoted an example that it amounts to compel an officer of high rank to take the seat of his junior.
Such an argument is humorous. In routine, when the office of junior officer is visited by the officer of high rank, the former always offers his seat to the latter as a gesture of respect. It does not mean that holding the seat of a junior for a while has lowered down the status of officer of high rank. In fact, inclusion of the Chief Justice of Azad Jammu and Kashmir and Senior Judge of the Supreme Court as well as Chief Justice and Senior Judge of the High Court has raised the status of the Committee, whereas, the status of the Supreme Court is still undamaged. Even otherwise, the status of the Supreme Court is provided under Article 42(1) of the Constitution that it is the highest Court of appeal, hence, no one may dare to disrespect this institution. Even otherwise, the Chief Justice of Azad Jammu and Kashmir, the Chief Justice and Judges of the High Court are Chairman, heads or members of other constitutional and statutory bodies. Furthermore, it is the superior judiciary which may have more better understanding and realization of prevailing issues being faced by the judicial system i.e., the superior Courts, subordinate/District Courts, Tribunals and problems faced by the litigants interacting with Courts, Courts' staff and the lawyers. The superior judiciary is better equipped with the relevant knowledge wisdom, experiences and solutions to the problems of the concerned avenues and is in more better position to interact, make liason and have the knowledge and wisdom of legal fraternity from the Bar for betterment of judicial system.
15. It has also been argued at bar that the Supreme Court is the highest Court of appeal, when the Committee is headed by Chief Justice of Azad Jammu and Kashmir, there remains no remedy against any illegal act of the Committee. We are afraid, the Committee has to work for betterment of the administration of justice, hence, in view of the nature of tasks to be performed by the Committee such an argument is also baseless and without any substance.
16. In view of the above discussion, we are of the view that the learned High Court fell in grave error of law while holding that the impugned legislation is ultra vires the constitution, whereas, we have not found any of the provisions of the impugned legislation as ultra vires the constitution or against the fundamental rights, which is pre-requisite for setting aside an enactment of the Assembly.
The aforesaid are reasons due to which we have overturned the impugned judgment of the High Court through our short order dated 07.10.2021. No order as to costs.
1. Riaz Hanif Rahi, Advocate v. Federation of Pakistan and others (Civil Petition No. 3718 of 2015, decided on 04.02.2020).