SAJJAD ALI SHAH, C.J.--Both these Constitutional petitions have been filed directly in this Court under Article 184(3) of the Constitution with common prayer to the effect that since the Federal government has not appointed five Judges in the Supreme Court as requested by the Chief Justice of Pakistan, action may be taken as is contemplated under Article 190 of the Constitution which provides that all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.
2. After hearing Mr. Babar Awan, petitioner in C.P. No,23 of 1997 and Mr. Muhammad Akram Sheikh, who is President of the Supreme Court Bar Association, in C.P.No,29 of 1997, we issued notice to the Attorney-general for Pakistan to assist the Court on behalf of the respondent. The learned Attorney-general was unable to appear in person and sent his Deputy Attorney-general, Moulvi Anwarul Haq. After hearing the learned counsel in the Court and keeping in view the urgency of the matter from the point of view that Bills are being introduced in the National Assembly, curtailing the powers of the Supreme Court and reducing the number of Judges, we have allowed these petitions for taking steps for action under Article 190 of the Constitution. Another important factor which has impressed us profoundly to take such decision is that the correct legal position is already enunciated in the relevant Articles of the Constitution pertaining to judiciary and the judgment of the Supreme Court in the case of Appointment of Judges reported as Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.
3. The Chief Justice of Pakistan addressed a letter to the Federal Law Secretary on 20th August, 1997 in which he requested for Appointment of five Judges in the Supreme Court, which fell vacant within the sanctioned strength of 16 Judges (CJP + 16 Judges) following the rule of seniority laid down in the case of Appointment of Judges mentioned above. Since the date of the letter about 72 days have expired. Neither these Judges have been appointed, nor any reply in writing has been received from the Federal government. It is provided in the short order of the abovementioned judgment that permanent vacancies of Judges are to be filled in immediately not later than 30 days.
4. It was submitted by the learned counsel for the petitioners that the President of Pakistan was pleased to file Special Reference No,2 of 1996 in the Supreme Court under Article 186 of the Constitution seeking opinion of this Court whether the advice of the Prime Minister as contemplated under Article 48(1) of the Constitution was binding or not on the President in respect of Appointment of Judges in the Supreme Court and the High Courts in view of the judgment of this Court in the case of Appointment of Judges (supra). Reference No,2 of 1996 was taken up for hearing alongwith Constitutional Petitions Nos. 23 and 54 of 1996 and disposed of vide judgment dated 4th December, 1996 which is reported as Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84, and it is held therein that since our Constitution contemplates parliamentary form of government, President has to act on the advice of the Prime Minister even in respect of appointment of Judges in the superior judiciary subject to ratio decidendi in the case of appointment of Judges and the guidelines laid down therein. An interesting question arose in that case as to what would happen if the judgment of the Supreme Court in the case of appointment of Judges was not implemented and in such case what action possibly could be taken within the four corners of the Constitution and law. Two paragraphs from that judgment which are very pertinent to the point at pages 146 and 147 of the report are reproduced verbatim as under:-- "85. The last point is very thought-provoking and was raised in the Court during the hearing, which is to the effect as to what will happen if the judgment of the Supreme Court in the Appointment of Judges case is not implemented. Learned counsel who had appeared in these matters made different comments. Mr. S.M. Zafar as amicus curiae stated that in such a situation President will be justified to invoke Article 58(2)(b) of the Constitution because it would amount to arising of situation in which government of the Federation cannot be carried on in accordance with the provisions' of the Constitution. Under the four corners of the Constitution Article 189 provides specifically that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.
Article 190 envisages that all executive and judicial Authorities throughout Pakistan shall act in aid of the Supreme Court. Article 204 empowers the Supreme Court to punish for contempt any person who--
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of Court.
86. In the case of non-implementation of the judgment it will have to be found out as to who is responsible for not implementing it. Article 190 is a mandatory provision under which there is no alternative for the Executive but has to act in aid of the Supreme Court. Person identified as responsible for non-implementation of the judgment can be punished by the Supreme Court for contempt for disobedience of its judgment. Perusal of Articles 177 and 193 and other Articles which are relevant for the subject-matter of judiciary shows that Supreme Court has to correspond with the President for appointments as he is named specifically in the relevant Articles and all executive actions are to be taken in his name. It is expected that President shall see to it that appointments of Judges in the superior judiciary are made in strict accordance with the Constitutional scheme contemplated in Articles 177 and 193 of the Constitution which are to be interpreted and read in conjunction with the judgment in Al-Jehad Trust case which is authoritative adjudicatory pronouncement in respect of interpretation of Articles in the Constitution relating to the judiciary.
Time frame is also provided in the judgment within which appointments are to be finalised. If there is undue delay or impasse which shows that dilatory tactics are being adopted and sincere attempt is not being made to implement the judgment, then it will become the Constitutional duty of the President to see that judgment of the Supreme Court is implemented and there is. No violation or non-compliance of Article 190 of the Constitution which makes it mandatory for all Executive and Judicial Authorities throughout Pakistan to act in aid of the Supreme Court. If all the Executive and Judicial Authorities in Pakistan are unable to come in aid of the Supreme Court and judgment is not implemented, then such situation would be open to be construed as impasse or deadlock and would amount to very unhappy situation reflecting failure of Constitutional machinery and one would be justified to say that a situation has arisen in which the government of Federation cannot be carried on in accordance with the provisions of the Constitution as is contemplated under Article 58(2)(b).
5. At the time when the judgment was passed by this Court in the case of Appointment of Judges, Article 58(2)(b) was available in the Constitution under which the President in his discretion could dismiss the government and dissolve the National Assembly where in his opinion a situation had arisen in which the government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary.
6. Later, the government of Mohtrama Benazir Bhutto was dismissed and the National Assembly was dissolved vide Proclamation dated 5-11-1996. In the Proclamation, reliance was placed on several grounds, two of which were that the judgment of the Supreme Court in the case of Appointment of Judges was not implemented and secondly the judiciary was ridiculed. Mohtrama Benazir Bhutto challenged the Proclamation of Dissolution in this Court and lengthy hearing before a Bench of Seven Judges took place, and finally the petition was dismissed by majority of 6 to 1 vide short order dated 29-1-1997. In the majority judgment, both the grounds with regard to non- implementation of the judgment and ridiculing of judiciary were accepted as justifiable grounds for dissolution.
7. The judgment in the Reference mentioned above is reported as Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84. Paragraph 30 from the judgment of Saiduzzaman Siddiqui, J., at page 249 of the report is reproduced as under:-- "30. I am in respectful agreement with the above observations and inclined to hold that if the Prime Minister within the time frame fixed in the judgment of this Court in Al-Jehad Trust case fails to tender his advice, he or she shall be deemed to have agreed to the recommendations of the Chief Justice of Pakistan and that of the Chief Justice of Provincial High Court as the case may be, and the President may proceed to make the final appointment on that basis. The question of law referred by the President under Article 186 of the Constitution to this Court for opinion, is answered as stated above."
8. In view of what is stated above it is very clear that as per the guidelines laid down in the case of Appointment of Judges, final appointment orders are to be passed by the government within 30 days and if it is not done, then it is to be deemed that the Federal government/Prime Minister has no objection to the recommendations and steps can be taken by the President for final appointment on the assumption mentioned above. Since the legal position with regard to the appointments is very clearly stated in the relevant Articles of the Constitution and the judgments of the Supreme Court mentioned above, very justifiably, in the peculiar circumstances of the case, request is made to the President to render assistance under Article 190 of the Constitution which contemplates that all executive and Judicial Authorities throughout Pakistan shall act in aid of the Supreme Court. In the result, for the facts and reasons stated above, both these petitions are allowed. The Registrar of this Court is directed to send a copy of this judgment to the Military Secretary to the President for its placement before the President of Pakistan for whatever action he deems fit and proper as contemplated under Article 190 of the Constitution.