PHC expunges comments against JCP nominee
Says parliamentary committee on judges appointment went beyond mandate
Peshawar High Court. PHOTO: PPI/FILE
ISLAMABAD:
The Peshawar High Court (PHC) has expunged findings of a parliamentary panel about a person nominated by the Judicial Commission of Pakistan (JCP) last year as an additional judge of the high court of the Khyber Pakhtunkwa (K-P) province.
The JCP – a commission responsible for appointing judges for the Supreme Court and the provincial high courts – had approved nomination of Advocate Tariq Afridi as additional PHC judge in 2019.
However, the Parliamentary Committee on Judges Appointment had not confirmed the JCP nomination and referred the matter back to the JCP through the prime minister “in terms of 2nd proviso to clause (12) of Article 175-A of Constitution”.
In the minutes of its meeting dated July 8, 2019, the committee noted that intelligence reports about Tariq Afridi showed that his financial conduct was not aboveboard. “He has compromising attitude; is professionally incompetent and violates rules and regulations.”
Later, Afridi had approached the PHC against the committee’s decision and a PHC division bench led by Justice Lal Jan Khattak on Friday issued an 11-page judgment after hearing the petition.
“The committee’s findings regarding the petitioner’s professional skill and competence are beyond its constitutional mandate; therefore, the same cannot be countenanced, hence we are constrained to expunge such findings of the committee from its decision,” said the PHC ruling.
However, the court maintained the committee’s decision to refer Afridi’s name back to the JCP for its reconsideration in terms of 2nd proviso to clause (12) of Article 175 A of the Constitution.
The order said the core question is whether the parliamentary committee can reject the JCP nomination.
“The answer lies in the 1st proviso to clause (12) of Article 175-A… which says that the committee may not confirm the nomination by three-fourth majority of its total membership. Likewise the committee while rejecting the nomination has to give reasons and refer the matter to the JCP,” it said.
The court said if this time the JCP confirms its earlier nomination then such confirmation will be sent straight to the president for issuance of formal notification for appointment of Afridi.
The order noted that the committee while rejecting Afridi’s nomination and sending its decision to the commission has acted within its constitutional mandate to which no exception could be taken.
The court also referred to Munir Hussain Bhatti case judgment 2011 which said the JCP comprises five sitting judges of the apex court, a former SC judge, chief justice of high court concerned, most senior high court judge , law minister, Attorney General for Pakistan and two senior representatives of the bar.
“These members have immense background and stature in the field of law and judicial system. The SC ruling wondered as how technical expertise of the commission could be reversed by the committee. In view of SC judgment, the high court has expunged the committee’s findings.”
The court also directed the JCP secretary –who is also the SC registrar –to place Tariq Afridi case before the commission in terms of the 3rd proviso.
The Pakistan Bar Council (PBC) counsel Amjad Shah told The Express Tribune that the bar council would challenge the PHC judgment regarding expungement of committee findings in the apex court.
However, the petitioner may also approach the SC seeking direction to the federal government regarding his appointment, sources said.
The Peshawar High Court (PHC) has expunged findings of a parliamentary panel about a person nominated by the Judicial Commission of Pakistan (JCP) last year as an additional judge of the high court of the Khyber Pakhtunkwa (K-P) province.
The JCP – a commission responsible for appointing judges for the Supreme Court and the provincial high courts – had approved nomination of Advocate Tariq Afridi as additional PHC judge in 2019.
However, the Parliamentary Committee on Judges Appointment had not confirmed the JCP nomination and referred the matter back to the JCP through the prime minister “in terms of 2nd proviso to clause (12) of Article 175-A of Constitution”.
In the minutes of its meeting dated July 8, 2019, the committee noted that intelligence reports about Tariq Afridi showed that his financial conduct was not aboveboard. “He has compromising attitude; is professionally incompetent and violates rules and regulations.”
Later, Afridi had approached the PHC against the committee’s decision and a PHC division bench led by Justice Lal Jan Khattak on Friday issued an 11-page judgment after hearing the petition.
“The committee’s findings regarding the petitioner’s professional skill and competence are beyond its constitutional mandate; therefore, the same cannot be countenanced, hence we are constrained to expunge such findings of the committee from its decision,” said the PHC ruling.
However, the court maintained the committee’s decision to refer Afridi’s name back to the JCP for its reconsideration in terms of 2nd proviso to clause (12) of Article 175 A of the Constitution.
The order said the core question is whether the parliamentary committee can reject the JCP nomination.
“The answer lies in the 1st proviso to clause (12) of Article 175-A… which says that the committee may not confirm the nomination by three-fourth majority of its total membership. Likewise the committee while rejecting the nomination has to give reasons and refer the matter to the JCP,” it said.
The court said if this time the JCP confirms its earlier nomination then such confirmation will be sent straight to the president for issuance of formal notification for appointment of Afridi.
The order noted that the committee while rejecting Afridi’s nomination and sending its decision to the commission has acted within its constitutional mandate to which no exception could be taken.
The court also referred to Munir Hussain Bhatti case judgment 2011 which said the JCP comprises five sitting judges of the apex court, a former SC judge, chief justice of high court concerned, most senior high court judge , law minister, Attorney General for Pakistan and two senior representatives of the bar.
“These members have immense background and stature in the field of law and judicial system. The SC ruling wondered as how technical expertise of the commission could be reversed by the committee. In view of SC judgment, the high court has expunged the committee’s findings.”
The court also directed the JCP secretary –who is also the SC registrar –to place Tariq Afridi case before the commission in terms of the 3rd proviso.
The Pakistan Bar Council (PBC) counsel Amjad Shah told The Express Tribune that the bar council would challenge the PHC judgment regarding expungement of committee findings in the apex court.
However, the petitioner may also approach the SC seeking direction to the federal government regarding his appointment, sources said.