IHC CJ refrains from giving consent on appointment

Islamabad High Court (IHC) Chief Justice Athar Minallah has refrained from involving himself in the consultation process on the appointment of an individual other than the judicial officer of a court, saying that it would not be in consonance with the principles of the Constitution.

Chief Justice Athar Minallah says that it is not desirable for a chief justice to give consent to the appointment of a particular person because, in his opinion, it is likely to create a perception of conflict of interest or bias, even it is without any basis.

The law ministry has referred the name of Justice (retd) Zia Perwez as Chairperson of Environmental Protection Tribunal to IHC chief justice for consultation regarding his appointment. In response to the ministry’s request, CJ Minallah gave a very comprehensive consultative opinion.

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“Any perception of ownership of the chief justice of a high court regarding the appointment of a particular person to an office, other than a judicial officer of court established under Article 175 [of the Constitution], must be avoided,” the chief justice wrote.

He further said that the perception of ownership of the chief justice in the appointment of a particular chairperson of the environmental tribunal would not be in consonance with the principles of Constitution and the Pakistan Environmental Protection Act of 1997.

“Moreover the plain language of Section 20 (2) [which is related to the appointment of the chairperson of the tribunal] does not show that there has to [be] consensus regarding particular person or that the opinion of chief justice would be binding,” he added.

“Assuming that as a chief justice, I propose particular person and the federal government does not appoint the latter, would that be ultra vires of [the Act of] 1997,” the chief justice wrote in his response to law ministry.

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“In my opinion, the answer is negative so long as the federal government has recorded its reasons and had consulted the chief justice regarding fundamental principles relating to the appointment of a chairperson.”

CJ Minallah also dilated on the Section 20 (2) of the act, saying that the language of the section was confined to prior consultation “but … can it be construed that it includes consensus regarding a particular person or that the opinion of the chief justice would be binding.”

The chief justice believes that consultation in the matters of executive nature which do not relate to the appointment of judicial officers has to be understood and interpreted in conformity with the principles of trichotomy and separation of powers as well as scheme of particular statute.

Though he declined to get involved in appointments of individuals other than judicial officers but stressed that he was fulfilling statutory obligation as legislature had explicitly provided that the “appointment of chairperson of the tribunal shall be subject to consultation with the chief justice”.

“The Environmental Tribunal is not a court established under Article 175 of Constitution and it exercises quasi judicial powers as the qualifications for the appointment as chairperson have been prescribed under section 20(2) of the Act of 1997,” CJ Minallah wrote.

Though the chief justice refrained from commenting on the specific person for the post but stated that he was not in favour of the appointment of a sitting or retired judge of the high court as the chairperson of this tribunal.

The chief justice further stated that the nominee was a retired judge of the Supreme Court and there was no bar on a retired Supreme Court judge to be appointed as tribunal chairman but added: “In my personal opinion, it should be avoided.”

Giving reasons in this regard, he said that the appointment was a quasi-judicial function and its decisions were amenable to the appellate jurisdiction of the high court. Secondly, its undermined the sanctity of the superior judicial forums. Thirdly the appointment of the Supreme Court or a high court judge was not in conformity with the principles of independence of judiciary.

Lastly, he continued, in the wake of environmental concerns, the persons who were known for their experience, knowledge, commitment in the field of environmental law and science should be appointed. Chief Justice Minallah mentioned that Pakistan had eminent professionals – such as Dr Pervaiz Hassan – who are acknowledged internationally for their contribution.

The chief justice suggested that the law ministry and the environment ministry might consider a review of the eligibility of criterion regarding the appointment of the chairperson of the environmental tribunal and its members and place it before the parliament for its consideration so as it bring the provision in conformity with schemes of the Constitution and challenges faced by humanity due to environmental degradation and climate change.

He said the federal government would be liberty to appoint a person as chairperson of the environmental tribunal. He said that the federal government would not require his approval regarding particular person because that was likely to breach the principles in this consultative opinion. This opinion would meet the requirement of consultation contemplated under section 20 (2) of the Act of 1997.