The Lahore High Court
The Lahore High Court (Under United India) was established on the 21st of March 1919. In 1899, the Secretary of State for India in Council, by its Resolution dated 25th April, 1899, laid down as a principle that all Chief Justices and Judges of the High Courts in India thereafter to be appointed would be required to vacate their offices on attaining the age of sixty years.
From 1911 two additional Judges, from 1917, the third additional Judge was sanctioned and from 1918, the fourth additional Judge was added and this temporary strength of four Judges continued till the Letters Patent was granted to the Court in 1919.
1911
In 1911 the Imperial Parliament passed the Indian High Courts Act 1911 giving the Royal Sovereign the power, inter alia, to establish new High Courts in British India from time to time as the occasion arose and to appoint temporary Additional Judge for a term not exceeding two years. Since, however, the Chief Court did not come within the category of the High Court, all additional appointments of temporary Judges to the Chief Court were made by the Governor-General under various Punjab Courts Acts enacted in 1884, 1914 and 1918 (as amended from time to time) read with the Acting Judges Act, XVI of 1867.
Four years later, the Govt. of India Act, was repealed by the Government of India Act, 1915. The new Act provided that all the existing High Courts established by Letters Patent would be treated as High Courts for the purposes of the said act that each High Court, would consist of a Chief Justice and as many other Judges as His Majesty thought fit to appoint, that the Governor-General in council would appoint persons to act as Additional Judges for such period not exceeding two years as where necessary, and that the maximum number of Judges of a High Court including the chief Justice and the Additional Judges would be twenty. The Act also provided that the Judges would hold office during His Majesty’s pleasure and that Acting Judges would be appointed by the Local Governments.
The new Act also granted the Royal Sovereign authority to establish High Courts by Letters Patent in any territory in British India and to confer on any High Court so established any such jurisdiction, power, and authority as were vested in or might be conferred on any High Court existing at the commencement of that Act. The Letters Patent establishing the Lahore High Court was granted pursuant to the provisions contained in Section 113 of the Government of India Act, 1915.
1919
In 1919, under the Letters Patent creating the High Court of Judicature at Lahore, the Judges thereof were appointed directly by His Majesty the King Emperor. The Court of the Province was for the first time constituted as a Court of Record with powers to punish persons guilty of its contempt, a power which the previous Chief Court did not possess. The permanent strength of the High Court was limited to seven Judges — one Chief Justice and six Puisne Judges.
1935
The Government of India Act, 1935 made certain radical changes in the constitution and powers of the various High Courts in British India. The new Act provided that the Judges would hold office during good behaviour, whereas previously they held office during His Majesty’s pleasure. Instead of the ceiling of twenty Judges fixed by the earlier Act, the present Act left it to His Majesty to fix the number of Judges separately for each High Court depending upon their requirements. All acting appointments of Judges were left in the hands of the Governor-General and the powers of the Local Governments were withdrawn. Under the old system, the Chief Justice had always been a Barrister Judge. The new Act removed this limitation and opened the Chief Justiceship to Civilian Judges as well. The new Act also fixed the 60 years age limit for High Court Judges. By the Government of India (High Court Judges) Order, 1937, the maximum number of Judges fixed for the Lahore High Court was 15.
1947
In the middle of 1947 by the enactment of a master instrument captioned, the Indian Independence Act, 1947, the Imperial Parliament created the two independent Dominions of Pakistan and India. The High Courts (Punjab) Order, 1947, a subsidiary instrument of the Act created a new High Court of Judicature for the territory of East Punjab (in India) as from the 15th day of August, 1947.
Side by side, the High Court (Lahore) Order, 1947, preserved the continuance of the High Court at Lahore with all rights, powers and privileges as hitherto enjoyed and possessed by it before the appointed day. The Governor-General of the Dominion of Pakistan became the substitute of the Crown in matters of appointment etc., of Judges of the Lahore High Court. After the Partition, the Governor General of Pakistan fixed the strength of the Lahore High Court at 6 permanent Judges and one Additional Judge with effect from 28th September, 1948.
On 6th July, 1954, Government of India (Amendment) Act, 1954 was passed. By this new Act, all High Courts in Pakistan were invested for the first time with powers to issue to any person or authority, including the Government itself in appropriate cases, writ in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari.
1956 Constitution of Pakistan (First constitution)
Pakistan Citizenship was made a pre-requisite to became a Judge of High Court. The bifurcation previously created between Barristers and Pleaders was removed and both were grouped into one compartment for eligibility, namely, advocates or pleaders having at least ten years’ standing in both or either of High Courts.
The qualifying period of five years service previously laid down for persons holding judicial officers in British India not inferior to that of a subordinated Judge, or judge of a Small Cause Court, was raised to ten, but the enumeration describing the two particular types of judicial offices to be held was removed.
The appointment of all Judges by the President was made conditional on the President first seeking advice from the Chief Justice of Pakistan, the Governor General of Province to which the appointment related and where the appointment was out that of the Province to which the appointment related and where the appointment was not that of the Chief Justice, the Chief Justice of the High Court of that Province.
1962 Constitution of Pakistan (Second constitution)
The new Constitution provided for the appointment of additional Judges, unlike the previous of which did not contain any such provision. Whereas under the previous Constitution, the right to invoke the Supreme Court’s jurisdiction was itself a fundamental right, under the new Constitution the Supreme Court’s jurisdiction to enforce Fundamental Rights was transferred to the High Courts, with this difference that the right was not one which could be invoked as a fundamental right but was one which could only be enforced subject to the High Court’s discretion. The previous Constitution Act gave wider powers to the High Courts for the purpose of issuing Writ, directions and orders. It further contained a provision prohibiting the issue of writ in relation to persons in the Defence Services of Pakistan in respect of their terms and conditions of service or matters arising therefrom or in respect of action taken against them as members of such Services and in relation to other persons in the Service of Pakistan, in respect of their terms and conditions of service, except those as were specified in the Constitution itself. In many other respects the provisions in the Chapter dealing with the High Courts in the new Constitution Act were a parallel if not similar to the provisions existing in the Constitution Act of 1956.
1973 the Constitution of the Islamic Republic of Pakistan, 1973 (Third Constitution)
On 14th August, 1973, the Constitution of the Islamic Republic of Pakistan, 1973, came into force. No special change was made in the term and conditions of the Senior Judges. However, a Special Chapter headed “General Provisions relating to the judicature” was added
Source: Lahore High Court
Procedure of Appointment of Judges
Article 175-A
Now for the appointment of the judges of the High Court, the newly added sub-Article (5) of Article 175-A of the Constitution 1973 provides the Judicial Commission of Pakistan. It reads as under:-
(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:-
(i) Chief Justice of the High Court to which Member the appointment is being made;
(ii) the most senior Judge of that High Court; Member
(iii) Provincial Minister for Law; and Member
(iv) An advocate having not less than fifteen Member years practice in the High Court to be nominated by the concerned Bar Council for a term of two years.; and
Provided that for appointment of the Chief Justice of High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission:
Provided further that if for any reason the Chief Justice of a High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice or Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2).
Provided further that if for any reason the Chief Justice of High Court is not available, he shall also be substituted in the manner as provided in the foregoing proviso.
By virtue of sub-Article (8) of Article 175-A of the Constitution 1973, the Judicial Commission by majority of its total membership shall nominate to the Parliamentary Committee one person for each vacancy of a judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be.
By virtue of sub-Articles (9) to (17) of Article 175-A of the Constitution 1973, the following procedure has been provided for the composition, powers and inter-se relationship between the Judicial Commission and the Prime Minister/ President. These sub-Articles read as under:-
(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:-
(i) four members from the Senate; and
(ii) four members from the National Assembly
Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis, apply.
(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.
(11) Secretary, Senate shall act as the Secretary of the Committee.
(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed;
[Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period.]
Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister;
Provide further that if a nomination is not confirmed, the Commission shall send another nomination.
(13) the Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.
(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.
(15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.
(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.]
(17) The Committee may make rules for regulating its procedure.