JUDGMENT KHALIL-UR-REHMAN KHAN, C.J.- By this judgment we propose to answer questions referred to the Full Bench in W.P.No. 3772/96. W.P.No. 3350/96. W.P.No. 4Q\4/96. W.P. No. 2883'96.
W.P. No. 3998/96, W.P.No. 3907 96. W.P. No. 4273'96, W.P.No. 4013'96. W.P. No. 3975/96 and W.P. No. 3773/96: and W.P-. No. 11500 96. W.P. No. 11501/96. W.P. No. 3377/96 and I.C.A. No. 13/96. As in all these petitions similar questions of law require determination.
The first set of petitions were filed to challenge the vires of sections 3 and 4 of the Suppression of Terrorist Activities (Special Courts) Act. 1975, which provide for the establishment and constitution of the Special Courts. The petitioners in the second set of petitions have challenged the establishment, composition and constitution of Special Courts under section 3 of the Offences in respect of Banks (Special Courts) Ordinance, 1984.
3. Learned counsel in these petitions appearing before the Division Benches, inter alia, urged that the Courts envisaged by the aforesaid two Statutes are the Courts which are made and un-made at the will of the Executive Government as the Presiding Officers of these Courts appointed by the Executive Government ha\e no security of office guaranteeing their terms and conditions of service. They arc made to work at the pleasure of the Executive Government and are removable by the Executive Government at any time even without assigning any reason. The Executive Government can by a notification take persons accused of the commission of the Scheduled offences out of the purview of the High Court and the criminal courts subordinate to it and these Statute concedes authority to the Executive Government to treat similarly placed accused persons with a different treatment at its whim and tlmt it is the Executive Government which has exclusive power to withdraw cases'from one Special Court and entrust to another Special court of its choice.
It was also the case of the petitioners that the said Courts so established under the two Statutes are violative of the provisions of the Constitution viz. Articles 175 and 212 of the Constitution of the Islamic Republic of Pakistan arid that of the Fundamental Right to get justice by a fair and impartial Court,
4. The learned Division Benches hearing these petitions being of the view that the questions raised were of public importance referred the matter to the Chief Justice for constitution of larger Bench.
A Bench comprising Chief Justice. Mr. Justice Tanvir Ahmad Khan. Mr. Justice Ihsan-ul-Haq Chaudhry. Mr. Justice Malik Muhammad Qayyum and Mr. Justice Khalil-ur-Rehman Ramday was constituted but later on Mr. Justice Khalil-ur-Rehman Ramday withdrew from the Bench as in one of the cases his brother w;as the counsel for the petitioners. Another learned member also expressed his willingness to withdraw' from the Bench to avoid delay in hearing and disposal of these matters as by joining another learned Judge with the for members of the Bench the matter would have to be argued again. The three members of the Bench who were also hearing similar matters wherein the constitution of Banking Tribunals under the Banking Tribunals Ordinance, 1984,.Was challenged continued to hear these matters. This course was adopted in the interest of justice and with the consent of all the parties.
The questions which require consideration are:- ' (i) Can the judicial power be vested in and be exercisable by a body/Court/Tribunal which is denuded of the attributes considered essential for maintaining and preserving independence of the Court so as to ensure right of access to justice unhindered and unfettered?
(ii) Are the Special Courts in the two aforementioned Acts pertaiping to constitution of the. Courts violative of the mandate, i.e., independence and separation of Judiciary, contained in Article 175 of theConstitution?
5. Learned counsel for the petitioners argued that judicial power is the legal right, ability and authority to hear and decide, objectively a justiciable issue, dispute or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them.
Added that the judicial power must be conferred by the State under the Constitution or law on persons who were paid by the State and the authority of the person in whom this power is vested is generally called a 'Court' and that the framework of the Constitution as is based on the principle of separation of the State power. Article 175 provides the hierarchy of Courts falling in Part VII under the heading "The Judicature". According to the learned counsel as the judicial power has been vested by the Constitution only in Courts, the Legislature cannot enact a law to confer any part of it on any executive or other forum and that by giving to a body or Tribunal a nomenclature of Court, the mandate of independence and separation of Judiciary does not stand satisfied and complied with if it is not provided with the essential features and powers required for the exercise of judicial power independently and freely. On the question as to what is judicial power and the scheme of conferment of judicial power on Courts under the Constitution, reference was made to Iftikhar Ahmad vs. The Muslim Commercial Bank Ltd. Cmd another (P.L.D. 1984 Lahore 69). As to the attributes essential for exercise of judicial power the following features of "judiciary proper" were emphasised:
(i) Appointment of the Presiding Officer of the Court with the meaningful consultation of the High Court.
(ii) Providing of definite tenure and terms of appointment and ensuring security of the said tenure and terms.
(iii) Vesting of power of transfer of the Presiding Officers and the cases within the judicial hierarchy and not with the Executive.
(iv) Financial independence to be secured and allowed.
(v) Vesting of general supervision and superintendence in the High Court and not in the Executive.
In support of the above, reference was invited to Government of Sindh through Chief Secretary to Government of Sindh. Karachi and others vs. Sharpf Faridi and others (P.L.D.I994 S.C. 105), Government of Bulochislun through Additional Chief Secretary vs. Azizullah Memon and I6 others (P.L.D. )993 S.C. 341). In sre: Special Courts Bill, 1978 (AIU 1979 S.C. 478), S.P. Sampath Kumar vs. Union of India and others (AIR 1987 S.C. 386) and Miss Benazir Bhutto vs. Federation of Pakistan and another (PLD 1988 SC 416).
3. On factual plane, it was urged that appointments of the Presiding Officers of the Special Courts/Banking Courts are being made for a short specified period of 2/3 years or till further orders.
The Statutes in question do not provide any security of tenure of office and the Presiding Officers so appointed are at the mercy of the Executive and their services are terminable at the whim of the Executive, It was pointed out that Mr. Justice (Retd.) Qurban Sadiq Ikram was appointed Presiding Officer of the Banking Court under the Offences in respect of Banks (Special Courts) Ordinance, 1984, was compulsorily asked to go on leave on 30th of July, 1995, for the remaining period of his terms which was to expire on 15.10.1995 only for the reason that he had admitted to bail family members of the Opposition Leader. Learned counsel also urged that the lawyers who were otherwise office bearers of the Political Party in the Government have been appointed Presiding Officers of these Banking Courts and the Executive Government by making such appointments used these Statutes as a measure to suppress and persecute the citizens who are opposing the policies of the present Government. It is further alleged that the use of judicial powers so vested in the Eexcutive Government is being abused in the entire process and these two Statutes have been manipulated for the persecution of the citizens.
7. The learned Attomey General argued that rupees eighty five billion of the financial institutions have been stuck up on account of non-return of the finance received and utilized by the borrowers/customers and the process of law is being abused with the mala fide intention of blocking the recovery proceedings initiated by the financial institutions by filing appropriate proceedings before the Banking Tribunal, He emphasised that right and liberty of the citizens were recognized by the Statutes and the Constitution and no law can be struck down unless it is ultra vires of the Constitution and law. He added that a law may be dubbed as a bad law or harsh law but if the same is competently made by the competent Legislature, the same cannot be struck, down on the ground of unfairness or harshness. Next it was argued that theory of separation of powers implies that the same person should not exercise the functions of Executive and Judiciary both and that the Tribunal' is a generic name, It is the functions and the powers exercised and the attendant attributes which determined whether the body so constituted is a Court or a Tribunal.
The learned Attorney General cited Ch. Zahir llahi vs. The Slate (PLD 1977 S.C. 273) to emphasise that the mere designation of Tribunal and not Court makes no difference, It was observed in the precedent case that "Indeed Tribunal is a generic term which includes a Court and often these terms are used interchangeably" and that the functions of the Special Tribunal set up under section 8 of the Defence of Pakistan Ordinance (Ordinance No. XXX of 1971) are wholly judicial and not administrate e as under section 12 of the Ordinance, the Special Tribunal enjoys "all the powers conferred by the Code on a Court of Session exercising jurisdiction" and as such it is idle to contend that the said Court "is not a Court' for thfc purposes of Cr.P.C, and has. Therefore, no power to allow bail". The learned Attorney General referring to Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others vs. Sharaf Faridi and others (PLD 1994 SC 105) argued that the Supreme .Court in the said case gave the direction to appoint the Judicial Magistrates separate!) from the Executive Magistrates for administering criminal justice and the said case does not go beyond the said direction and that "Judiciary proper" is not only the forum which is to exercise judicial functions exclusively but other bodies/Courts/Tribunais can also be created to exercise judicial functions in accordance with the law competently framed by the Legislature.
8. The learned Attomey General further contended that the Offences, in respect of Banks (Special Courts) Ordinance, 1984 and the Suppression of Terrorist Activities (Special Courts) Act, 1975 were legislated competently and that these two Statutes are not ultra vires of the Constitution. As regards the first mentioned Ordinance, reference was made to Altaf Hussan vs. The State (PLD 1985 Lahore 10) wherein it was observed that the Special Court is a validly constituted Court and it is to perform a judicial function under the constitution and the law. In this case, the objection, inter alia, raised was that as the Special Court was presided over by a sitting Judge of the High Court, it is a High Court and, therefore, no fresh application can be entertained after one has already been rejected. As the question raised was whether it was then a High Court or a Court subordinate to it?
The learned Judges noted that the incumbent may even be a person qualified to be a Judge of the High Court. The Special Court so constituted is not a Bench of the High Court as the appointment/nomination is to be made not by the Chief Justice but the Federal Government. A Special Court presided over by a sitting Judge of the High Court will be judicially inferior to the High Court. The other observations recorded in this judgment may be quoted as these are relevant to the question under discussion:- "7. The contention raised by the learned counsel for the respondent.
However, has no force in the presence of changed constitutional position. The 1962 Constitution provided under Article-129 that there shall be. In. Addition to the Supreme Court and the High Court, such other Courts as are established by law. The Constitution did not demarcate their sphere of jurisdiction. However. Article 130 laid down that no Court shall have any jurisdiction that is not conferred on it by the Constitution or by or under law. So, the establishment of a Special Court, without making its orders appealable before the High Court or Supreme Court shows in the absence of anything that it was a Court subordinate or inferior to the High Court, that its order would be final. On the contrary, the Article 175 oj the 1973 Constitution does place the entire judicial power under the High Court,^subject to such specific exclusions which lire expressly noted in some other Article like 212 etc. Reference be auain made to #tbs Abdul Hafeez v. The Stale, Article 175(3) further states that the judiciary shall be #the #tbs progressivelv separated from the executive within the given time '. No such provision existed in the 1962 Constitution. It is. Therefore, auite evident that whereas the previous amalgam of the executive and iudicial powers must be separated within the given time, no new iudicial function, other than the ones expressly mentioned in the Constitution, shall be conferred on anv executive authoritv. After the #the commencing date. This Court has already taken the same view in Iftikhar Ahmad The Muslim Commercial Bank Lid. Thus the Legislature cannot be considered to have given such power to a persona designate or any other executive authority in a 1984 Ordinance. The Special Court, therefore, as it is also so named, is a Court constituted under the Constitution, and is inferior to the High Court."
The underlined observations instead of advancing the case of the Federation support the contention of the petitioners. The other case referred to by the learned Attorney General is Messrs Sindh Glass Industries Limited and 4 others Vs. Pakistan through the Secretary, Ministry of Justice and Parliamentary Affairs. Federal Government Secretariat. Islamabad and 2 others (1989 CLC 524 (Karachi) wherein it was observed that it is not the composition of a Tribunal which may determine the nature of its work but it is the work which is entrusted to the Tribunal and the procedure provided to dispose of the same are the material factors for determining the nature of the work of the Tribunal, for that the Banking Tribunal Ordinance, 1984. Is intra vires the Federal Legislative power and not violative of the Fundamental Rights. The learned Attorney General argued that the observations made in this case as well as in other cases viz. Arshad Aziz. Managing Director. Imran Corporation (Pvt.) Ltd, and another Vs. Bank of Oman Ltd, and another (PLD 1995 Lahore 6).
Muhammad Shafi & Co, Vs. National Bank and others (PLD 1995 Lahore '360) and Khurshid Alam and 3 others Vs. United Bank Limited and 7 others (PLD 1995 Karachi 409) that the Banking Tribunal Ordinance. 1984. Is a valid piece of legislation and provisions of the Ordinance are not violative tf f undamental Rights, apply with full force to the two laws in question and as such the Special Courts constituted under these two Statutes are validly constituted and as such no valid objection as to constitution and composition can be raised. Reliance was also placed on an unreported judgment of the Supreme Court in C.P.No.577 of 1993 titled "M/s. Golden Star Ghee Industries Ltd.. Rawalpindi, etc. Vs. M/s National Development Finance Corporation, Karuchi, etc." wherein Mr. Justice Abdul Qadeer Chaudhry observed that "Banking business is one of the subjects included in Item 28. Item-55 confers the jurisdiction with respect to any of the matters in this List (Federal Legislative List). There is another Item-14, which relates to the Administrative Courts and Tribunals for Federal subjects. The claim filed by the banking-company clearly falls within the Federal Legislative List, and the Tribunal constituted for the recovery of loan was competently legislated by the President." The petition was dismissed with further observation that rule laid down in AIR 1979 SC 478 does not support the petitioners and the leave prayed for was refused.
I0. The provisions of the two Statutes which are under challenge may now; be reproduced a6 under:- The provisions of the Suppression of Terrorist Activities (Special Courts) Act. 1975.
"3. Constitution of Special Courts: (l) The Federal Government may, by notification in the official Gazette, constitute, for the whole or any pari of Pakistan, Special Courts consisting of a person who-
(a) has been or is qualified for appointment as, Judge of High Court; or
(b) has, for a total period of not less than three years, exercised, whether continuously or not, the powers under the Code, of a Sessions Judge or an Additional Sessions Judge.
(2) If so directed by the Federal Government, the Provincial Government shall constitute a Special Court or Courts each consisting of a person who is qualified under subsection (l) to be appointed as Special Court.
(3) A Special Court shall sit at such place as the Government constituting it may, by notification in the official Gazette, specify in this behalf.
3. Jurisdiction of Special Court: (I) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any court immediately before the constitution of the Court: Provided further that the Govt, constituting a Special Court may. By notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons w ho have committed scheduled offences as may be specified in the notification. #
(2) If, in the course of a trial before the Special Court, tl Court is of opinion that any of the offences which the accused is allege to have committed is not a scheduled offence, the Court shall record sue opinion and try the accused for such offence, if any, as is a schedule* offence."
As the composition and establishment of the Special Court is being challenged on the ground of independence and separation of judiciary it will be appropriate to refer to other relevant provisions of the said Act.
"14-A, Transfer. (1) Where two or more Special Courts have jurisdiction of cases etc. Wholly or partly in the same territorial limits and the Govt, constituting the Special Courts or, if one of such Special Court has been constituted by the Federal Govt, the Government is satisfied that for the general convenience of the parties or witnesses or for the ends of justice, it is expedient to do so, such Govt, may, by notification in the official Gazette direct that a case or class of cases specified in the notification shall stand transferred from one Special Court to another."
Section 7 of the Act provides for an appeal to the High Court against the sentence passes by the Special Court. Except for the said appeal, no Court has the authority to revise the sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code of Criminal Procedure, or have any jurisdiction of any kind in respect of any proceedings of the Special Court. .
The provisions of the Offences in Respect of Banks (Special Courtsj Ordinance, 1984.
"3. Constitution of Special Courts. (1) The Federai Government may, by notification in the official Gazette, constitute, for {he wHdleor any part of Pakistan, Special Court consisting of a person Who has been or is, or is qualified for appointment as a Judgp'bf tjrte High Coprt.
(2) A Special Court shall sit at such plaoe as the Federal Government may, by notification_in the official Gazette, specify in this behalf." - The Special Court has the exclusive jutisdiction to try.The scheduled offences, i.e., offences specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank aid all cases-relating to a scheduled offence pending in any Court other than the Special Court stood transferred to the Special Court on commencement of the Ordinance.
Ifaperson is sentenced by a Special Court, he has a right of appeal to the High Court under section 10 of the Ordinance. Except for the said appeal, no Court has the authority to revise t|he sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code of Criminal Procedure or have any jurisdiction of any kind in respect of any proceedings of the Spec ial Court.
H. At this stage, it will also be appropriate to produce for ready reference the provisions, which are relevant for the purpose of the instant case, of the Banking Tribunals Ordinance. 1984, as the precedents cited by both the sides are the cases in which the provisions of this Ordinance were interpreted:- . '
"4. Establishment of Banking Tribunals. (l) The Federal Government may. By notification in the official Gazette, establish as mans Banking Tribunals as it considers necessary, and, where it establishes more than one Banking Tribunal, it shall specify in the notification the territorial limits within which'each of the Tribunals shall exercise jurisdiction under this Ordinance.
(3) A Banking Tribunal shall consist of a person who is or has been, or is qualified for appointment as-a Judge of a High Court or a District Judge or an Additional District Judge, to be appointed by the Federal Government.
5. Powers of Banking Tribunals. (l) A Banking Tribunal shall-
(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a customer in respect of, or arising out of, finance, provided by it, all the powers vested in a Civil Court under the Code of Civil Procedure, l908(Act V of 1908);
(b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for this purpose, have the same powers as are vested in the Court of Session under the Code of Criminal Procedure. 1898 (Act V of 1898): Provided that a Banking Tribunal shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorised in this behalf by the Banking Company in respect of which the offence was committed: and
(c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it, by or under this Ordinance.
(d) A Banking Tribunal shall, in all matters with respect to which procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).
(2) All proceedings before a Banking Tribunal, shall b deemed to be judicial proceedings within the meaning of sections 19 and 228 of the Pakistan Penal Code (Act XLV of 1860), and the Bankir Tribunal shall be deemed to be a Court for the purposes of section 4 [Vol. XV Imran Ahmad Ch. And others V Federation of Pakistan Cr.C. 479 (Khalil ur Rehman Khan, C.J) and 482 of the Code of Criminal Procedure. 1898 (Act V of 1898).
(3) No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decision as to the existence or otherwise of finance and the. Execution of a decree passed by a Banking Tribunal: Provided that nothing in this sub-section shall be deemed to affect-
(a) the right of a Banking Company to seek any remedy before any Court or otherwise that may btfr available under the law by which the banking company may have been established or'under that law as amended from time to time; or
(b) the power or jurisdiction of the banking company or any Court such as is referred to in clause(a); or to require the transfer to a Banking Tribunal of any proceedings pending before the banking company or any such Court immediate!) before the commencing day."
11. Before proceeding further it appears appropriate to survey and analyse the precedents relied upon by the learned Attorney General. The case of Golden Star Ghee Industries Ltd. Supra is a judgment whereby leave was refused, In this case it was held that the claim filed by the banking company for the recovery .Of the amount borrowed fell within the Federal Legislative List, and the Tribunal constituted for the recovery of loan was competently legislated by the President. So, the authority of the President to legislate on the subject falling within the Federal Legislative List was upheld, In the insant case, the authority of the President to legislate on the subject is not being challenged as the question raised is whether judicial power could be vested in a body or an authority though designated as a Special Court which stands denuded of the .Essential attributes required for the exercise of judicial power? This question was not before the learned Judges of the Supreme Court in the abovfe said case and it was for this reason that the judgment from the Indian jurisdiction referred to in the case was held to be not supporting the petitioners. This case is distinguishable as it does not apply to the proposition being canvassed before us.
12. Messers Tank Steel and Re-Rolling Mills (Pvt.) Ltd.. Dera Ismail Khan and others vs. Federation of Pakistan and others (P.L.D. 1996 S.C.77) is the case in which the order of the Peshawar High Court dismissing the writ petition in limine was challenged, it appears that the Banking Tribunals Ordinance, 1984 as well as the Banking Tribunals (Validation of Orders) Ordinance (No.XV of 1993) were sought to be challenged as being ultra vires the Articles 23, 24 and 25 of the Constitution. The learned Judges of the High Court were of the view that the judgment and decree against the judgment-debtor by the Banking Tribunal had not offended the provisions of Articles 23, 24 and 25 of the Constitution and that it fell within the domain of the Federal Shariat Court to hold that the provisions of law were violative of Injunctions of Islam. The learned Judges of the Supreme Court while subscribing to the reasoning which prevailed with the learned Division Bench of the High Court in refusing to grant Constitutional relief (Which reasoning have not been noted in the judgment) observed that the petitioners did not challenge the findings of the Banking Tribunal before the High Court in appeal as envisaged by section 9 of the 1984 Ordinance and that the direction to deposit the decretal amount by a specified date as directed by the Division Bench seized of the appeal resulting into dismissal of the appeal as withdrawn amounts to not availing of the remedy and that the impugned order of dismissal of the appeal thus attained finality. The other relevant observations are contained in para 11 of the judgment and the same are reproduced for reference and guidance:- 'II. We also uphold the finding of the learned Division Bench in the High Court that the provisions of the first Ordinance in general and those of sections 6(6) and 9 in particular are not ultra vires the Articles 23,24 and 25 of the Constitution."
The above quoted observations do not give any reason and as such no guidance can be sought therefrom for determining the question of law argued in the instant cases. !
3. Next is the case of Arshad Aziz supra. The plea urged before the learned Single Judge was that in view of Article 175 of the Constitution judicial power can be exercised by a Court only and the banking Tribunal is neither a Court as defined in Article 175 nor an administrative Tribunal under Article 212 of the Constitution lacked the jurisdiction to deal with the matter and the Ordinance was liable to be struck down being violative of the Constitution and Fundamental Rights 23, 24 and 25. The context in which the afore-noted plea was urged is apparent from the very next line of the judgment which reads: "Next submission is that the Federal Shariat Court has declared mark-up as un-islamic in Shariat Petition No.109/1/1991 and as such no Court can recover any amount on the basis'of a system declared un-islamic." The observation recorded in para 5 read as under: ~ "5. The contentions of the parties have been considered. Article 175 of the Constitution is not a self- executing provision (it lacks the Characteristics of self-executing provisions) nor it has defined Courts, It also does not limit the bodies which only can be called Court. Courts or judiciary in Article 175 appear to have been used in a generic sense in contradistinction to executive bodies, the hierarchy of which culminates in the case of Federation, in the President; and in case of the Province in the Governor. Courts or judicial forums thus would be all those bodies which\ perform judicial functions and dispense justice. The Banking 7; Tribunal constituted under Ordinance LVIH of 1984 has all the embellishments of a Court. At the most it can be said to be a special Court dealing with a specific matter. The vires of the Ordinance vis-a-vis the fundamental rights and the Constitution have already been examined in M/s. Sindh Glass Industries Ltd., etc. v. Pakistan (1989 CLC 424) and it has been held that the Ordinance as well as the Banking Tribunal were competently legislated and constituted and further the provisions of the Ordinance did not militate against the Fundamental Rights. As most of questions raised by the petitioners already stand answered in the precedent case, further discussion of the subject would be un-needed splashing of verbiage."
The learned Judge in this para has noted that Courts or Judiciary in Article 175 appear to have been used in a generaic sense in contradistinction to executive bodies, the hierarchy of which culminates, in the case of Federation, in the President; and in case of the Provinces in Governors.
The Courts or judicial forums thus would be all those bodies which perform judicial functions and dispense justice. Thus, the proposition that the judicial power is to be vested in judicial forum, which perform judicial functions appears to have been accepted. The learned Judge, however, has added that the Banking Tribunal constituted under Ordinance LVIIi of I984 has all the embellishments of a Court and at the most it can be said to be a "Special Court" dealing with a a specific matter. This view was criticised by the learned counsel for the petitioners as according to them Banking Tribunal and the "Special Courts" established under their respective Ordinances have, in fact, been denuded of the embellishments/attributes of the judicial power and as such these Special Courts or the Tribunals cannot be said to be the repositus of judicial power or the bodies or Courts capable of administering in justice independently and fairly. The rest of the observations as-to the vires of the Ordinance are based on the Karachi case of Sindh Glass Industries Ltd. (supra). This case will be discussed in the later part of the judgment.
The case of Muhammad Shaft & Co.(supra) does not advance the case of the responflents-Banks as it was held that the Tribunals/Special Courts under the Banking Tribunals Ordinance, 1984, possess limited jurisdiction which could not be equated with Courts of general jurisdiction and that the suit pending in the Banking Tribunal, therefore, could no be transferred to the Banking Court constituted under Ordinance of 1979. In the Karachi case of Khurshid Alam and 3 others (supra), learned Judges observed that the Banking Tribunals Ordinance, 1984, having come into force with effect from 31.12.1984 was covered by Article 270-A of the Constitution and had complete protection from being examined regarding its validity .On any ground whatsoever. Article 270-A of the Constitution also conferred validity on.The contents of provisions of the said Ordinance and that before striking down the provisions of the Banking Tribunals Ordinance, 1984, Article 270-A, itself will have to be struck down, and the Courts being creatures of the Constitution were bound to act within the limits imposed by the Constitution." With these observations, it was held that the provisions of sections 6 and 9 of the Banking Tribunals Ordinance, 1984, were, thus.
Intra vires of the Constitution. It was also observed that the petitioners could not explain as to how provisions of sections 6 and 9 of the Banking Tribunals Ordinance were violative of Fundamental Rights guaranteed by the Constitution.
14. The view that Article 270-A provides complete protection to -the provisions of the Ordinance and its validity cannot be examined on any ground whatsoever is stated to be based on the ratio of amongst others the case of Federation of Pakistan and another vs. Malik Chulam Mustafa Khar (PLD 1989 SC 26). We are afraid the ratio of the said case rather is reflected from the following observations:- "During the Martial Law when the fundamental rights stood suspended. Article 4 furnished the only guarantee or assurance to the citizens that no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law. Acts, actions or proceedings which suffered from excess or lack of jurisdiction or were coram non judice or main fide (be it malic in fact or in law) could hardlv be treated as those in accordance with law. They were thus bad even under the system Which was validated by Parliament under Article 270-A on account of violation of the assurance given by Article 4. It is difficult to concede that by enacting clauses (2) and (5) the Parliament had intended to validate such acts, actions or proceedings or to put them beyond the reach of the Courts or to deprive the persons who had suffered thereunder of any remedy or relief whatsoever. There is a presumption that Legislature does not perpetuate inequity pr injustice and there is no reason why such a presumption should not be invoked while interpreting clauses (2) and (5) of Article 270-A."
Again in para 30 of the judgment, it was observed :- "Taking into-account the background in which Article 270-A was enacted, the language in which it is phrased and the absurd results which would follow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of constitutional deviation'; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide.
For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law."
The view of the learned Judge in Khurshid's case as to the legal effect of Article 270-A of the Constitution is also contrary to the ratio of the judgment of the Supreme Court in the case of Miss Benazir Bhutto vs. Federation of Pakistan and another (PLD 1988 SC 416). Mr. Justice Muhammad Haleem. The then Chief Justice observed:- "The next question which arises for consideration is whether the lega Cr.C. 483 measures to which validity has been given by Article 270-A (1) of the 1973 Constitution can be construed to be prospective in operation by reference to its language as contended by the learned Attorney-General. While considering this question it should be borne in mind that the legal measures which have been given validity were enacted during the specified period and not all have survived so as to continue in force until altered, repealed or amended by the competent authority as enacted by Sub-Article (3) of Article 270-A. If the legal measure is not itself in existence how can it operate prospectively. The test of the legal measures being prospective must be equally applicable to those which have survived and those which have not survived which is not the case here. In this connection Sub-Article (3) of Article 270-A is itself a clue to the prospective operation of laws which are saved as it gives to them a continuity but not to those which are repealed. Thus is also against the principle of validation which only remedies the defect retrospectively bui does not care for any future operation of the law."
Again at page 511. The observation recorded reads:- "The deletion of the Political Parties Act manifestly shows the intention of the Legislature not to give validity against Constitutional violations to the laws except those which are specified in the Seventh Schedule. This was because of the Legislature's awareness of the Constitutional limitation on its power to make laws which take away or abridge the Fundamental Rights (Article 8(2), and the validity, therefore, granted could not violate this limitation."
The Division Bench of the Sindh High Court which decided the case of Khurshid Alam also decided the other case (Zarat International (Pvt.) Ltd vs. Banking Tribunal No.1. Karachi and 3 others) (1995 MLD 1546) (Karachi)) vide its judgments dated 26th April, 1995, recorded the same views regarding the effect of Article 270-A in the judgments, In the case of Zarat International, it was further observed that Banking Tribunals constituted under Ordinance LVIII of 1984 were not covered by Article 212 of the Constitution and there being no clear cut demarcation between a Judicial Court' and a Judicial Tribunal' and in fact both being synonymous and engaged in discharging the functions of the State, Banking Tribunal constituted by the Federal Legislature were intra vires of the Federal Legislative powers. This view was based tgain on Karachi case (1988 CLC 524) and two Indian judgments.
15. It will now be appropriate to analyse the judgment in the case of Sindh 'JToss Industries Ltd.. The first thing to be noted is that the Banking Tribunals Ordinance (LVIII of 1984) as originally enacted under challenge in the said judgment has in the meanwhile been amended in material respects and some of the observations made there may not be applicable now.
Secondly, the contentions that Ordinance is ultra vires the powers of the Federal Legislative, inasmuch as the Tribunal could not have been constituted and that the provisions (Section 6 providing shorter procedure and Section 9 providing Appeal by first depositing decretal amount, etc.) of the Ordinance are violative of Fundamental Rights were examined in the context of the pleas that the composition of the Tribunal comprised of one Judicial member and two non-judicial nominees of Government, militates against the concept of Judicial Tribunal or Court and procedural provisions of the Tribunal are departure from the normal procedure followed by Judicial Tribunal or Court. Thirdly, the pleas urged were not based on the principle of separation and independence of Judiciary as mandated in the Constitution contained in Article 175(3) of the Constitution; and also by then period of 14 years fixed by the Constitution for separating the Judiciary from the Executive had not yet expired, It is. Therefore, in the aforesaid context that the observations as follows recorded by Mr. Justice Ajmal Mian, the then Chief Justice and presently Senior Judge of the Supreme Court are to be understood:- "We are inclined to hold that it is not the composition of a Tribunal which may determine the nature of its work but it is the work which is entrusted to the Tribunal and the procedure provided to dispose of the same are the material factors for determining the nature of the work of the Tribunal."
Again, there is no cavil to the proposition that Entry No. 3 read with Entry No. 2 of the Concurrent Legislative List provides the power to the Federal Government to legislate the Ordinances in issue but the question is whether the provision made regarding manner of composition and the other powers given to the Federal Government which has the effect of denuding the Special Court' or the Banking Tribunal' of the essentials of judicial power are not violative for the concept for independence and separation of Judiciary enshrined in Article 175(3) read with Article 212 of the Constitution. These Articles in somewhat limited context and in conjunction with Article 136 of Indian Constitution were examined by late Justice Gul Muhammad Khan in the case of Iftikhar Ahmad supra and the pertinent observations made with regard to concept of Court and Tribunal read as under:- "Para 7.-There appears to be a very special feature in our 1973 Constitution, It includes a specific provision in Article 212 for the constitution of Tribunals for purposes expressly given therein and provides for an appeal before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and a High Court for each Province have been created under that Article while power has been conferred on the Legislature to create other Courts and also to confer jurisdiction on them. This position may be contrasted with the Indian Constitution. Article 136(1) of that Constitution lays down that the Supreme Court may grant special leave to appeal from any judgment etc:, in any cause or matter, passed or made by any Court or Tribunal in the , territory of India. Article 227 states that every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Thus, while the Indian Constitution recognises existence of Tribunals sharing judicial power with Courts, it is conspicuously absent in the 1973 Constitution.
This appears to be a very important departure from the previous Constitutional position as even Article 98(5) of the 1962 Constitution recognised Tribunals alongwith Courts. Strangely, enough, however, the power for superintendence of High Courts was conferred only with regard to the Courts subordinate to them and not for Tribunals as in the Indian Constitution, It is thus quite clear that the 1973 Constitution of Pakistan recognises only such specific Tribunals to share judicial power with Courts, as are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that neither a Court near any other judicial tribunal is relieved of the duty of deciding a matter before it justly, fairly, equitably and objectively. The only difference is that a Tribunal is not as much bound by the rules of procedure and the evidence as the Courts of law are."
Learned Judge further held that no executive authority can be empowered to exercise judicial power under Article 175. Para 8 reads:- "Para. 8.-The Constitution.Of Pakistan as regards judicial power is thus quite different from that of India and resembles the Australian Constitution inasmuch as that no executive authority can be empowered to exercise judicial power under Article 175 and any power so conferred by a legislature shall be ultra vires. Relevant portions from two Astrialian judgments may also be quoted in support, In the Attorney- General for Australia v. The Queen and the Boilermakers' Society of Australia (3) and interesting question arose for the decision of the Court under sections 29(1 )(b) and (c) and 29-A of the Commonwealth Conciliation and Arbitration Act, 1904-1952. These provisions purported to vest judicial power-even to the extent of finding a citizen or depriving him of his liberty in the Court of Conciliation and Arbitration established under the Act with powers of an administrative, arbitral and executive character. It was held that the said provisions were invalid, because the function for an industrial arbitrator is completely outside the realm of judicial power and is of a different character. Viscount Simonds, cited with approval the observations made by Griffith Civil Judge in Waterside Workers Federation of Australia v. Alexander Ltd. (I), that it is impossible under the Constitution to confer' such functions (i.e. Judicial functions) upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name, In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective."
I6. The questions that require to be attended to are:- What is the Judicial Power' and what are its concomitant requirements to be provided to the 'judiciary proper' separated from the executive for the exercise of judicial powers freely and independently without any restraint, impediment, obstruction, hindrance, or executive control.
In the Lahore judgment,' Gul Muhammad Khan, J. After surveying treatises and precedents with regard to judicial power observed:- "18. Despite the collection of elaborate views above, it has been generally observed that the definitions so far attempted are not exhaustive of the term Court'. However, inspired by all that has been said so far, and without claiming that it will be exhaustive, in my humble view, judicial power' is the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a justifiable issue, dispute or controversy, concerning the existing legal rights, duties or interests of persons or property, arising out of relations and dealings, between two or more parties, who bring the same for an authoritative decision, binding on them and may include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process. Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who are paid by the State and removable by it only. The authority of body in which this power is vested is generally called a Court' and in performing its functions it declares, construes and applied law or custom or usage, having the force of law. The judicial power' is thus the instrument to be used by the Court."
17. The Constitution is based on the principle of trichotomy of power in which executive, legislature and judiciary have their own functions independent from each other. The cumulative effect of the concept of independent judiciary enshrined in the Article 175 read with Fundamental Rights of access to justice and "due process of law" was succinctly highlighted by Saleem Akhtar, J. In the case of Government of Baluchistan (supra) as follows:- "The Constitution provides for separation of judiciary from the executive, It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere. The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not. Judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone' of independence of judiciary and unless judiciary is independent, the fundamental light of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive Officers. This is merely a semblance of establishing Courts which are authorised to .Decide case- and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution........................ The Constitution envisages independent judiciary separate from the executive. Thus any Tribunal created under the control and superintendence of the executive tor adjudicationof civil or criminal cases will be in complete conflict with Articles 175. 9 and 25." .
Again, at page 370, the observations made read:- "Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well, the lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved asthat of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive, In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separated from the executive and 'High Court shall supervise and control all Courts subordinate to it.' Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. Separation of Magistracy is the first-step towards separation and independence. The ' next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions..Accommodation, building and expansion to meet the growing needs of the people."
In this very case with regard to right of access to Courts and justice, it was observed:- "An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faricli v. Islamia Republic of Pakistan (PLD 1989 Karachi 404) when after referring to Syed Abdul Alla Maudoodi's case (PLD 1964 SC 673 at 710) and Ms. Benazir Bhutto's case (PLD 1989 SC 416) I had observed as follows:- 'The right of "access to justice to all" is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of "due process of law". The right of access to justice includes the right to be treated according to law. The right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol.II at page 1709 where the term "due process of Law" has been summarised as follows:-
(1) He shall have due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) " That it is a Court of competent jurisdiction.
It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial Court and Tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it.'
Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special' Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation. Even in such cases where special Tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing persons on the Tribunal, providing procedure or imposing any sentence or conviction. Such special Tribunals and Courts must follow the ordinary rules of justice, equality and good conscience, In fact the administration of justice cannot be made subject to of controlled by the executive authorities."
At this stage notice be taken of Sharaf Faridi's case (PLD 1994 SC 105) arising out of the celebrated judgment delivered by Mr. Justice Ajmal Mian of the Sindh High Court (as his Lordship then was).
Learned Judges of the Supreme Court not only approved the view taken by the Sindh High Court but also directed the Government to separate the Judiciary from Executive and also to secure and allow financial independence to the Judiciary. It was also noted that the independence of judiciarv means:-
(a) that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and
(b) that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.
The question of independence of Judiciary also came for consideration before the Supreme Court in the celebrated judgment of Al-Jehad Trust Vs._Federation of Pakistan and others (PLJ 1996 SC 882). Mr. Justice Sajjad Ali Shah, Chief Justice analysing the relevant Constitutional provisions remarked:- "34. At this stage, it'would be pertinent to look at the Constitution of the Islamic Republic of Pakistan, 1973 very minutely to find out as to what status does it provide for the Judiciary and how far it intended to make the judiciary independent within' the scheme and the for comers of the Constitution. In the Preamble to the Constitution, the Objectives Resolution is reproduced which enunciates that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed arid independence of the Judiciary fully secured, it also provides that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out by the Holy Quran and Sunnah. Article 2-A of the Constitution envisages that the principles and provisions set out in the Objectives Resolution are hereby made substantive part of the Constitution and shall have effect accordingly. Article 2 of the present Constitution commands that Islam shall be the State religion of Pakistan. Part IX of the Constitution contains the Islamic provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. What is very important in this context is the fact that Article 2- A was inserted in the Constitution by P.O. No. 14 of 1985 and mad the substantive part of the Constitution which blends the Constitution with the spirit of Islam."
Learned Chief Justice on the questions of appointment of Judges and consultation with the head of the Judiciary observed:- "46. In the book titled ' ' which is authored by Syed Abdul'ala Moudoodi at page 95 on the subject of Supremacy of Law' it is mentioned that the Caliphs did not consider themselves to be above the law, but considered themselves to be equal with the common citizens in the eyes of law. Even if the Quzis were appointed by the Head of the State, but after such appointment, Qazis became independent in giving decisions against the Head of State as they could give in respect of ordinary citizens. One instance is quoted in which Hazrat Ali saw a Christian in the bazar1 who was selling an armour belonging to Hazrat Ali. The latter did. Not exercise his authority to snatch the armour but lodged a complaint with the Qazi who gave decision against the Amirul Moumineen as he could not produce satisfactory evidence. Another instance often quoted is that once Hazrat Ali appeared in the Court of a Qazi in a dispute with another person and Qazi stood up from his seat in deference to Hazrat Ali which was deprecated by the latter as conduct highly improper and inconsistent with the independence of the Judiciary .
47. The purpose of quoting from the Islamic books is to show as to how much importance is given in Islam to consultation' and how much respect and binding force is given to the opinion of the Qazi or Judge and very wide powers given to the Chief Justice including all appointments of subordinate Judges under him.
48. The word consultation.' used in the Constitutional provisions relating to the Judiciary is to be interpreted in the light of the exalted position of the Judiciary as envisaged in Islam as stated above, and also in the light of the several provisions in the constitution which relate to the Judiciary guaranteeing its independence. An attempt has been made to trace the history of the Judiciary in the constitutional and the legal documents which governed India before the partition.
49. Since both India and Pakistan were one country before 1947. They inherited more or less the same type of problems and difficulties, in their judicial systems with which we are concerned at present. Both the countries have made provisions in their respective Constitutions under which the judicial systems are set up and governed and methodology is provided for appointment of Judges..The pivotal point in both the judicial systems in the process of appointments is the word consultation' which is categorically defined in India in the famous case of S.C. Advocates on Record Association vs. Unionof India (AIR 1.994 SC 268) giving primacy to the opinion of the Chief Justice of India. In the Constitution of 1973. By which Pakistan is being governed, in the chapter relating to the Judiciary and in the process of appointments, the same word 'consultation' is used."
Mr. Justice Ajmal Mian in this very case in his judgment speaking on the questions of independency of Judiciary and right of access to Justice quoted the observations recorded in Azizullah Memon's case and observed: "l9. I am inclined to agree with the above view as I have already observed hereinabove that without having an independent Judiciary, the Fundamental Rights enshrined in our Constitution will be meaningless and will have no efficacy or beneficial value to the public at large."
Learned Judge after quoting Verses from the Holy Quran and Traditions of the. Prophet of Islam (P.B.U.H.) and other literature noted down the principles to be fallowed in the matter of appointment of Judges and essentials of exercise of judicial power:- "22. From the above quoted Verses from Holy Quran and other literature on the subject, inter alia the following is deducible:-
(i) that the Holy Quran repeatedly enjoins that on who believes in Allah, His Prophet Muhammad (PBUH), Quran and Sunnah.
[Vol. XV #tbs Cr.C. 4$1 #the should stand out firmly for justice, as witnesses to Allah, even as against himself or his parents, his kin, rich and poor;
(ii) that the hatred of others should not make you severe to wrong and depart from justice;
(iii) that the Judges are not to be led by personal likes or dislikes , love or hate;
(iv) that the Judges should maintain strict impartiality and even treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential;
(v) To a Judge, all are equal in the eye of the law. As God dispenses justice among His subjects, so a Judge should judge without any distinction whatsoever; /' (vi) that a Judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and when truth presented itself to them, he must pass judgments without fear, favour or prejudice;
(vii) that the power to appoint inter alia Judges is a sacred trust, the same should be exercised in utmost good faith. Any extraneous consideration other than the merits is a great sin entailing server punishment;
(viii) that while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior calibre and meritorious record. Abundance of litigations and complexity of cases should not make them lose their temper;
(ix) that a Judge should not be corrupt, covetous or greedy;
(x) that a Judge should be paid handsomely so that hi needs are fully satisfied and he is not required to beg or borrow of resort to corruption;
(xi) that a Judge must be a man of having deep insight, profound knowledge of Shariah, God fearing, forth right, honest, sincere man of integrity;
(xii) that a Judge must be upright, sober, calm and cool. Nothing should rule his mind from the path of rectitude;
(xiii) that Judges should be given such a prestige and position, in the State that none of the Government functionaries can over lord them or bring them harm."
T hus, it stands recognized that even if the power of appointment or of establishment of a Court vests in the Government/Executive. The appointments cannot be made arbitrarily, and the said power of appointment is to be exercised through meaningful consultation of the Judiciary or its head (Chief Justice), power cannot be in-vested b> the Executive by appointing persons on its own, providing any procedures by imposing any sentence or conviction so as to control free and fair exercise of judicial power.
18. The attributes of judicial power essential for providing equal protection of law by an independent Judiciary have also been discussed by the Indian Supreme Court in its judgments.
Before surveying these judgments, the distinctive features of the Indian Constitution as to scope of jurisdiction relating to Tribunals are to be kept in view. Articles 323-A and 323-B comprising Part X|VA added by the Constitution (Forty Second Amendment) Act, 1976, enabled the Parliament to constitute Administrative Tribunals to deal with disputes as to terms and conditions of service appointed to public service (Article 323-A) and also to provide for the jurisdiction, power and authority of such Tribunals and to prescribe procedure of the Tribunal. Such a law may provide for the exclusion of jurisdiction of all Courts except that of Supreme Court under Article 136. Similar Tribunals may be established with respect to mattes such as Tax, Foreign Exchange, Election or Labour disputes, etc. Article 136 empower Supreme Court of India to grant special leave from any judgment passed by Court or Tribunal whereas under Article 212 of the Pakistan Constitution, an appeal by special leave is provided against any judgment/order of the Tribunal referred to in Clauses (a) to (c) of Para l of above Article and other Tribunals as are provided in Indian Constitution have not been provided for. Moreover, under Article 227 of the Indian Constitution, every High Court enjoys the power to have superintendence over all Courts and Tribunals within its jurisdiction whereas under Article 203 of Pakistan Constitution every High Court has been empowered to supervise' and 'control' all Courts subordinate to it but it does not refer to Tribunals.
So wherever" judicial power" vests in a body/Forum, whether designated as a Court or Tribunal and any right or liability conferred on or ensuing under a law is to be determined, the control and supervision over the said body/Forum/Court or Tribunal under the mandate of the Constitution has to vest in the High Court. It will also be noted that express power has been conferred by the Indian Constitution to constitute/establish Tribunals alongwith the Courts in respect of matters/subjects enumerated in Articles 323-A and 323-B which also provide for the exclusion of judicial review by the High Courts and the theory of separation of Judiciary as is enshrined in Pakistan Constitution is not contemplated in Indian Constitution.
19. Despite the above noted provisions of the Indian Constitution, the Supreme Court of India has maintained and preserved the principle of independence of judiciary. The Parliament passed the Administrative Tribunals Act. 1985 authorizing the Central Government to establish administrative tribunals for specified subjects. The tribunal was to consist of a Chairman and such number of Vice- Chairman and other members as the appropriate Government may deem fit. The qualifications for becoming Chairman, Vice-Chairman or member of a tribunal are laid down in the Act. An existing or former Judge of the High Court is qualified for all the three posts. Persons only with the administrative experience without any judicial qualifications can also be appointed. It was among others, on the ground of qualifications that the validity of the Act was challenged in S.P.
Sampath Kumar vs. Union of India and others (AIR 1987 Supreme Court 386). The Court held that it was necessary that the Chairman for the Tribunal should be a former or retiring Chief Justice or a Senior Judge of a High Couft though a person with the qualification of a High Court Judge with two years' experience as Vice-Chairman could also be appointed as Chairman. It was further recommended that all appointments were to be made by a high powered committee with a sitting Judge of the Supreme Court as its Chairman. On the question of mode of appointment of judicial as well as non-judicial members of the tribunal, the observations, being instructive are reproduced:- "6. That takes me to another serious infirmity in the provisions of the impugned Act in regard to the mode of appointment of the Chairman, Vice-Chairman and members of the Administrative Tribunal. So far as the appointment of judicial members of the Administrative Tribunal is concerned, there is a provision introduced in the impugned Act by way of amendment, that the judicial members shall be appointed by the Government concerned in consultation with the Chief Justice of India. Obviously no exception can be taken to this provision because even so far as Judges of the High Court are concerned, their appointment is required to be made by the President inter alia in consultation with the Chief Justice of India. But so far as the appointment of Chairman, Vice-Chairman and administrative members is concerned, the sole and exclusive power to make such appointment is conferred on the Government under the impugned Act. There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons as it likes as Chairman, Vice-Chairman and administrative members of the Administrative Tribunal. Now it may be noted that almost all cases in regard to service matters which come before the Administrative Tribunal would be against the Government or any of its officers and it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice- Chairman and administrative members, if a judicial member or an administrative member is looking forward to promotion as Vice-Chairman or Chairman, he would have to depend on the goodwill and favourable stance of the executive and that would be likely to affect the independence and impartiality of the members of the Tribunal....................................................................................................... ....................... There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the independence of the Chairman, Vice-Chairman and members of the Administrative Tribunal, if such power is absolute and unfettered. If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influence their decision-making process particularly'since the Government would be a litigant in most of the cases coming before the Administrative Tribunal and it is the action of the Government which would be challenged in such, cases............................................................................. This check or safeguard is totally absein the case of appointment of the Chairman, Vice-Chairman and administrative members of the Administrative Tribunal and the* possibility cannot be ruled out indeed the litigating public would certainly carry a feeling - that the decision making process of the Chairman, Vice-Chairman and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion, It can no longer be disputed that total insulation of the judiciary from all forms of interference from the coordinate branches of Government is a basic essential feature of the Constitution. The Constitution-makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence. Obviously, therefore, if the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Arts. 226 and 227 is taken away and vested in the Administrative Tribunal, the same independence from possibility of executive pressure or influence must also be ensured to the Chairman, Vice Chairman #tbs and members of the Administrative Tribunal I am, therefore, of the view that #the the appointment of Chairman, Vice-Chairman and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be. Invited to such reasons.
There is also another alternative which may be adopted by the Government for making appointments of Chairman, Vice-Chairman and members and that may be by setting up a High Powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of India. Both these modes of appointment will ensure selection of proper and competent persons to man the Administrative Tribunal and give it prestige and reputation which would inspire confidence, in the public mind in regard to the competence, objectivity am1 impartiality of those manning the Administrative Tribunal. If either of these two modes of appointment is adopted.-- it would save the impugned Act from invalidation. Otherwise,"it will be outside the scope of the power conferred on Parliament under Art. 323-A". ' - The reference may also be made to the decision of the Indian Supreme Court in pedal reference respecting the validity of Special Courts Act. 1978. AIR IV~V it pre me Court 47H:- "The provisions of the Bill appear to be unfair and unjust in three important respects. In the first place, there is no provision in the Bill for the transfer of cases from one Special Court to another.
The manner in which a Judge conducts himself may disclose a bias, in which case the interest of justice would require that the trial of the case ought to be withdrawn from hint. There are other cases in which a Judge may not in fact be biased and yet the accused may entertain a reasonable apprehension on account of attendent circumstances that he w ill not get a fair trial.
There are yet other cases in which expediency or convenience may require the transfer of a case, evgn if no bias is involved. The absence of provision for transfer of trials in appropriate eases may undermine the very confidence of the people in the Special.Courts as an institution set up for dispensing justice. The second infirmity from which the procedural part of the Bill suffers is that by Clause 7. Special Courts are to be presided over either by a sitting Judge of a High Court or by a person who has held office as Judge of a High Court to be nominated by the Central Government in consultation with the Chief Justice of India. A retired Judge presiding over a Special Court, who displays strength and independence may be frowned upon by the Government and there is nothing to prevent it from terminating his appointment as and when it likes. Clause 7 of the Bill violates Art. 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a Special Court. Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which CL. 7 imposes on the Central Government while nominating a person to preside over the SpecialCourt is to consult the Chief Justice of India. There is no provision to obtain his concurrence. These are the three procedural infirmities from which the Bill suffers and which are violative of Art. 21 of the Constitution, in the sense that they make the procedure prescribed by the Bill unjust and unfair to the accused.
The Bill is valid and Constitutional in all other respects".
The next case worth noticing is that of Delhi High Court in the case of Delhi H&h Court Bar Association and another vs. Union of India and others (AIR 1995 Delhi 323). In this case the Constitutional validity of the recovery of debts due to banks and Financial Institutions Act, 1993 on the ground that Act is un-reasonable and is violative of Article 14 of the Constitution and that it is beyond the legislative competence of the Parliament to enact such a law was challenged. The appointment of the Presiding Officer as the debts recovery Tribunal under section 5 of the Act was also challenged. The statement of objects and reasons in enacting the statute was that the banks and financial institutions were experiencing considerable difficulties in recovering loans and orcement of securities charged with them that the existing procedure for recovery of debts due with the banks and financial institutions had locked a significant portion of their funds amounting to billions in un-productive assets and that Special Tribunals with special cause and adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector was needed to be established. Section 4 provided the appointment of the Presiding Officer of the Tribunal by the Central Government and section 5 provided that a person shall not be qualified for appointment as the Presiding Officer unless he is or has* been or is- qualified to be a District Judge. Section 6 provided that the Presiding Officer shall hold office for a term of five years from the date on which he enters the office or until the age of sixty years whichever is earlier. The observations made and the findings recorded in this case may now be reproduced:- "47. As noted above, independence of judiciary is one of the basic tenets and a fundamental requirement of our Constitution. Any inroad into independence of judiciary is frowned upon by the Courts. The Constitution of a Tribunal under the Act is a negation of the principles of indepdence of judiciary. As the provisions of the Act show, the Tribunal and the Appellate Tribunal are fully within the control of the Central Government and before whom the principal litigant would be the Central Government itself. The provisions of the Act as such, no sitting Judge would rather like to be the Presiding Officer of the Tribunal or the Appellate Tribunal. This would leave a free field for the Central Government to appoint retired Judges without having any recourse to the High Court.
Apprehension was expressed during course of arguments that Presiding Officer chosen by the Central Government would remain entirely under the thumb and control of the Central Government. Reference was made to Section |6 of the Act which provides that no order of the Central Government appointing any person as the Presiding Officer of a Tribunal or an Appellate Tribunal shall be called in question in any manner on the ground merely of any defect in the Constitution of a Tribunal or an Appellate Tribunal.
50. Civil Courts which are directly under the control and superintendence of the High Court trying bank suits, the suits of creditor and debtor relationship, have been deprived of their jurisdiction and the jurisdiction conferred on a Tribunal which is against the theme of the Constitution and independence of judiciary, which, as noted above, is a basic feature of the Constitution. It is rightly said that the Act erodes independence of judiciary. It is a case where jurisdiction of a Civil Court has been truncated and it has been deprived of existing jurisdiction. It is a different matter if in a law enacted by Parliament jurisdiction is conferred on the Civil Court, but when the existing jurisdiction is taken away and conferred on a Tribunal having only trappings of a Court, it certainly affects the independence of judiciary. We cannot visulize a situation where a Court is continuously deprived of its ordinary jurisdiction and the same is conferred on the tribunals under the control of the executive. Since the Act erodes the independence of judiciary, it is unconstitutional and is void."
As regards the appointment of the Presiding Officer of the Tribunal and the mode of recruitment, learned Judges observed that under the Constitution the Judiciary at all level enjoys complete independence from the Executive as well as the Legislature. Article 50 provides for the separation of Judiciary from the Executive. Complete separation has been achieved except perhaps in certain North Eastern pockets. The same cannot be said of Tribunals constituted under laws enacted under Articles 323-A or 323-B of the Constitution, Court directive notwithstanding. The Tribunals established and constituted under similar provisions remained within the administrative control of the Executive., The people's confidence which the Courts enjoy because of total independence from the Executive is naturally not enjoyed to the same degree by Tribunals so constituted because of lack of complete independence. Clearly, the bureaucracy has two obvious advantages in expanding tribunal justice viz. (i) it acquires control overjlelds where it had none and (ii) new avenues for appointing its retired members become available. But the members so appointed do not have a sufficiently long tenure. Short tenures do not bring about involvement which is so vital to the strength of an institution. Noting these features it was held that though Tribunals could be constituted by Parliament not falling with Articles 323-A and 323-B of the Constitution, the Act called 'The Recovery of Debts Due to Banks and Financial Institution. 1993', is unconstitutional as it erodes the independence of Judiciary and is irrational, discriminatory, unreasonable, arbitral) and is hit by Article 14 of the Constitution.
20. The principles deducible from the survey of the Constitutional provisions and the case law are that in order to comply with the mandate of independence and separation of Judiciary, the Courts howsoever designated as Special Court' or Tribunal' are to be established and constituted by making appointment with meaningful consultation of the Chief Justice of the High Court and by providing security of tenure for a period which will not act as a disincentive, such a tenure should then be secured by making necessary provision in the Statute itself. The concept of consultation with the Chief Justice/the High Court is not a new concept- introduced by the Supreme Court in its recent judgment. The consultation with the High Court is provided by the CiVil Courts Ordinance, 1962. For making appointments of District Judges under section 5, for Additional District Judges under section 6 and for Civil Judges under section 8 of the Ordinance. The relevant provisions may be quoted hereunder:- "Section 5. District Judges: Government shall, in consultation with the High Court, appoint as many persons as it thinks necessary to be,District Judges and post a District Judge to each district: Section 6. Additional' District Judges: (l) Government may, in consultation with the High Court, appoint as.Many Additional District Judges as may be necessary.
Section 8. Civil Judges: Government may, in consultation with the High Court- fa) fix the number of the Civil Judges to be appointed;
(b) make rules prescribing qualifications for recruitment of persons as Civil Judges; and
(c) appoint as many Civil Judges as may be deemed necessary". . Even the Executive Magistrates who desire to be absorbed in the Judiciary on option are to be accepted by the High Court provided they fulfil the requisite qualifications prescribed by the relevant Service Rules. The appointments made to the judicial posts/tribunals as such by any contrary method is thus violative'of the theory of independence of Judiciary. In addition to these features, the power to transfer cases from one Tribunal to the other is not to be left to the discretion of the Executive and financial independence is also to be secured.
21. The provisions of the two Statutes, seen in the light of these principles: would be found to be infringing and violating the concept of independence and separation of Judiciary. The appointments of the Presiding Officers have been made by the Federal Government in its sole discretion in some cases of the persons who were office bearers of the party in power and in other cases of persons who may not be qualified to be appointed as a Judge of the High Court or a District Judge as in many cases a they, it was pointed out, did not fulfil the criteria of active practice for the prescribed*years. Be that as it may, these appointments have been made till further order or for a short tenure with no security of tenure whatsoever. The appointment is terminable at any time and without assigning any reason as no provision is made to secure tenure or appointment. Even the power to transfer cases vests with the executive and the supervision and the control of the High Court is altogether excluded. -
22. For the above reasons, sections 3 and 4 of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 (Ordinance No. |X of 1984) and sections 3, 4 and 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act No. XV of 1975) are hereby declared unconstitutional as these erode the independence of judiciary and the notifications appointing the Presiding Officers lo these Special Courts are quashed. Having held the aforesaid laws to be unconstitutional to the extent above-mentioned, the course open to the Federal Government is to submit the challans before the Criminal Courts of competent jurisdiction or to notify the Sessions Judges/Additional Sessions Judges as the Special Courts under Act XV of 1975 and appoint qualified persons in consultation with the High Court under section 3 of the Ordinance of 1984 for trial of criminal cases under the aforesaid laws. Of course, the legal deficiencies pointed out in other provisions of the laws will have to be rectified, if the accused are to be tried by the Special Courts under these laws, otherwise the cases will have to be tried by ordinary Criminal Courts. If this course is adopted, the High Court will nominate appropriate number of officers of the rank of Additional Sessions Judge to try the criminal cases on priority basis and thus the Government can save the amount being spent on the establishment of Special Courts. The money so saved can beneficially be used for strengthening tin. Judiciary by sanctioning the much needed additional strength of Judges at the lower Courts as well as the High Court.
23. Before parting with the case we may also state that the declarations made by, us in this judgment shall not affect cases past and closed or invalidate the judgments, orders or sentences passed or the proceedings which may have become Until. The appeals pending in the High Court shall be disposed of in accordance with law . The files of the cases pending with the Special Courts shall be transmitted to the High Court for entrustment to the Courts of competent jurisdiction for disposal in accordance w with law. V Withthe aforesaid declarations and observations, the writ petitions are accepted. Parties are, however, left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.