Apex court to hear challenge to SC judge’s appointment

BHC bar members wary of timing at which petition has been entertained

ISLAMABAD: Rejecting the registrar office objections, the Supreme Court has entertained a constitutional petition against the appointment of a sitting Supreme Court judge.

“After hearing the appellant in person, the office objection is overruled. Let the constitutional petition be numbered and fixed before the court whereby the question of maintainability shall be decided,” said Chief Justice of Pakistan Mian Saqib Nisar in his written order after hearing an appeal on March 12 against the SC registrar office’s objections over a constitutional petition, filed by lawyer Riaz Hanif Rahi. A copy of the order is available with The Express Tribune.

Two years ago, Rahi had filed a constitutional petition challenging the appointment of the same judge as well as his appointment as chief justice of the Balochistan High Court in August 2009. The petitioner made the federal government, the judge, ex-Balochistan chief minister Aslam Raisani, ex-Balochistan speaker Aslam Bhootani, and ex-Balochistan governor Nawab Zulfiqar respondents.

However, the SC registrar’s office returned petition after raising three objections. Interestingly, at that time, the office had observed that prima facie, the petition appears to be a frivolous one within the contemplation of Order XVII Rule 5 of the Supreme Court Rules 1980.

Likewise, the registrar office had also objected that the petitioner did not approach the proper forum as his petition does not fall under the purview of Article 184 (3) of the Constitution.

The petition contends that the appointment of the SC judge as BHC CJ and his later elevation to the apex court was illegal on many grounds. The first one claimed is that he was directly appointed BHC CJ on August 5, 2009 when the high court had no judges on it due to the July 31, 2009 SC ruling on PCO judges.



“The notification was issued in haste when the acting governor was on his last day and without seeking any advice from the CM, says the petition.  On the basis of experience as a judge of the high court, subsequently a notification dated September 1, 2014 was issued for his appointment as SC judge.

It is also contended that then CM’s advice was not sought by acting governor Aslam Bhootani and that he was incompetent to forward the name of the judge as CJ BHC.

“No provision exists in the constitution for the direct appointment of a CJ of a province. In such situations, articles 196 and 200 provide guidance which was not followed,” says the petition. Rahi prayed the SC that the appointment of the judge be declared invalid and unconstitutional.

The Balochistan High Court Bar Association has expressed serious concerns over the filing of the petition. Talking to The Express Tribune, Balochistan Bar Council Representative Munir Kakar questioned why this petition has been entertained at this time. He said lawyers from Balochistan have serious doubts over the petition and it does not send a good message to the smaller provinces.