SHC appointments: Federation restrained from issuing notification

SC reiterates decision to suspend parliamentary committee’s recommendations.

ISLAMABAD: The Supreme Court has reiterated its decision to suspend the parliamentary committee’s recommendations for judicial appointments to the high courts and has restrained the federation from issuing any notification on the nominations on Monday.

Additional Attorney General (AAG) KK Agha contended that the petitions filed under Article 184(3) were not maintainable as the issue was not of public importance. Even if it were, the parliamentary committee’s decision has not violated fundamental rights. He questioned, “Would we like the committee to become a rubber stamp?” He appeared on behalf of the federation.

Makhdoom Ali Khan, the petitioners’ counsel raised the issue of maintainability. He said there was a difference between public outcry and a protest. He said that the court has to determine the parliamentary committee’s authority in making judicial appointments for the superior courts.

A four-member bench of the apex court has suspended the parliamentary committee’s decision to not approve two additional judges of the Sindh High Court (SHC). A few days ago the parliamentary committee had rejected the Judicial Commission’s nominations regarding two additional judges of the SHC, Justice Mohammad Tasneem and Justice Salman Hamid.

The four-member bench headed by Justice MA Shahid Siddiqui comprising Justice Jawwad S Khawja, Justice Khilji Arif Hussain and Justice Tariq Pervaiz heard the constitutional petitions of the Sindh High Court Bar Association (SHCBA) for not confirming the nominations of two additional judges of the SHC and four additional judges of the Lahore High Court.

A two-member bench had overruled the parliamentary committee’s decision to deny extension to four additional judges of the Lahore High Court some two weeks ago. Their names are Justice Muhammad Yawar Ali, Justice Syed MA Akbar Naqvi, Justice Mamoon Rashid Sheikh and Justice Muhammad Farrukh Irfan Khan.

Ali Khan informed the court that he had not received the committee’s justification. However, the bench said that they knew of the reasons for not approving the LHC judges.

Justice Tariq Pervaiz enquired if it was not appropriate for the public to know the reasons the eight-member parliamentary committee has given for not confirming additional judges. “The Khyber-Pakhtunkhwa bar has passed a resolution condemning it for not confirming the judges’ names,” he said.

“How can we gauge the public’s interest and how can the judges’ appointment be related to the independence of the judiciary?” Agha questioned. “When the judges were deposed, people took to the streets. But it did not happen on November 3, 2007, because the people did not march against the Proclamation of Emergency.”

Justice Khawaja questioned the AAG if the court should entertain a petition by a person who appeared before the court to raise an objection against the committee’s decision. Agha said the petitions have not been filed by the affected judges, but the lawyers and the bar association.

Justice Shahid Siddiqui stated that the committee is obliged to give reasons if it refuses the judicial commission’s nominations. He questioned whether the committee’s reasons would be scrutinised by the people or the court.  The AAG replied that in his opinion if the reasons were justifiable they could be discussed in court.

“Can we ask an organisation to conduct a poll on the issue? If there are 51 per cent votes in favour, it would reflect public interest,” Justice Khawaja observed. In the case of Jamat-e-Islami vs. the federation, the party had challenged the president for contesting elections twice. It was of public interest but it did not violate fundamental rights, the AAG stated.

The court has adjourned the case for Tuesday.

Published in The Express Tribune, March 1^st, 2011.