Appointing judges: SHC reserves judgment on petitions disputing rejection of names
Petitioners question decision made on intelligence agency reports.
KARACHI:
The Sindh High Court reserved on Monday its judgment on a number of identical petitions on the appointment of judges to the superior judiciary.
The process so far has been that a judicial commission makes a recommendation which is then sent to a parliamentary committee. The committee then either accepts or rejects these names. However, the committee is supposed to come up with material reasons.
A full bench of Justices Maqbool Baqar, Fasial Arab and Sajjad Ali Shah, heard Deputy Attorney General Ashique Raza, Barrister Makhdoom Ali Khan and Farogh Nasim at length.
On Monday, Raza sought an adjournment, saying that one of the petitioners, Syed Mahmood Akhtar Naqvi, was not present. But Makhdoom, who is representing ex-judges Irfan Sadaat Khan and Ghulam Sarwar Korai, opposed this and appealed to the court to separate that petition. He argued that it seeks a different goal and is based on grounds altogether different from the other petitions, two of which were filed by the Sindh High Court Bar Association in Sukkur and Karachi.
The DAG then argued the case for the federal government. Referring to Article 175-A of the Constitution, he said that analysis was required to understand the will of the legislature. The article was inserted through the 18th Amendment and aimed to make the appointment of judges to the superior judiciary transparent and with consensus of the Executive and Judiciary.
Article 175-A should be taken as two parts. One pertains to the judiciary which has to evaluate the competence, legal acumen, integrity and honesty of a person to become a judge of a superior court. The second part deals with the parliamentary committee which has to form an opinion and make a decision on the basis of resources (reports from intelligence agencies).
But then, a controversy erupted after the parliamentary committee rejected the judicial commission recommendations. Raza emphasised that the committee “is not a judicial forum”. In the case on the table, the committee formed an opinion on the basis of a report that one of the judges had some “political association”. Political leanings and associations are two different things and political affiliation makes a judge controversial, he argued.
The seat of a judge is an honour bestowed upon an individual by the Constitution and nobody tainted by the charge of political affiliation has the moral ground to occupy such a position from where he or she is supposed to dispense justice to all, submitted Raza.
The committee formed an opinion on the basis of an intelligence report. It has no enmity with these two judges (the petitioners), but it had to rely on the report. He appealed to the court to dismiss the petitions.
Barrister Makhdoom Ali Khan is representing the two judges whose names were rejected. Barrister Makhdoom said the committee failed to give reasons for rejecting them. Also, the judge referred to in the intelligence report does not have any political affiliation but was said to be related to some political figure.
Barrister Makhdoom submitted that the petitioners were under scrutiny when they were given an extension for the first time. Why were these things not brought up then? There are several steps before a judge is appointed. A high court chief justice recommends a name to the governor, who sends it to the chief minister. If at any level antecedents are not found suitable, the federal government can turn the name down. He said that in this case, the names were not fresh appointments. It was their third extension.
He argued that a reason with no material basis and an opinion formed on the basis of such a reason becomes baseless. He appealed to the court to direct the parliamentary committee to ask the intelligence agencies to “behave” and whenever they send a report ensure that it is based on material facts.
DAG Raza said in his concluding remarks that parliamentary committees were a new concept and would take time to streamline. How can these judges sit on a bench with a stigma attached to them, he asked.
Published in The Express Tribune, March 20th, 2012.
The Sindh High Court reserved on Monday its judgment on a number of identical petitions on the appointment of judges to the superior judiciary.
The process so far has been that a judicial commission makes a recommendation which is then sent to a parliamentary committee. The committee then either accepts or rejects these names. However, the committee is supposed to come up with material reasons.
A full bench of Justices Maqbool Baqar, Fasial Arab and Sajjad Ali Shah, heard Deputy Attorney General Ashique Raza, Barrister Makhdoom Ali Khan and Farogh Nasim at length.
On Monday, Raza sought an adjournment, saying that one of the petitioners, Syed Mahmood Akhtar Naqvi, was not present. But Makhdoom, who is representing ex-judges Irfan Sadaat Khan and Ghulam Sarwar Korai, opposed this and appealed to the court to separate that petition. He argued that it seeks a different goal and is based on grounds altogether different from the other petitions, two of which were filed by the Sindh High Court Bar Association in Sukkur and Karachi.
The DAG then argued the case for the federal government. Referring to Article 175-A of the Constitution, he said that analysis was required to understand the will of the legislature. The article was inserted through the 18th Amendment and aimed to make the appointment of judges to the superior judiciary transparent and with consensus of the Executive and Judiciary.
Article 175-A should be taken as two parts. One pertains to the judiciary which has to evaluate the competence, legal acumen, integrity and honesty of a person to become a judge of a superior court. The second part deals with the parliamentary committee which has to form an opinion and make a decision on the basis of resources (reports from intelligence agencies).
But then, a controversy erupted after the parliamentary committee rejected the judicial commission recommendations. Raza emphasised that the committee “is not a judicial forum”. In the case on the table, the committee formed an opinion on the basis of a report that one of the judges had some “political association”. Political leanings and associations are two different things and political affiliation makes a judge controversial, he argued.
The seat of a judge is an honour bestowed upon an individual by the Constitution and nobody tainted by the charge of political affiliation has the moral ground to occupy such a position from where he or she is supposed to dispense justice to all, submitted Raza.
The committee formed an opinion on the basis of an intelligence report. It has no enmity with these two judges (the petitioners), but it had to rely on the report. He appealed to the court to dismiss the petitions.
Barrister Makhdoom Ali Khan is representing the two judges whose names were rejected. Barrister Makhdoom said the committee failed to give reasons for rejecting them. Also, the judge referred to in the intelligence report does not have any political affiliation but was said to be related to some political figure.
Barrister Makhdoom submitted that the petitioners were under scrutiny when they were given an extension for the first time. Why were these things not brought up then? There are several steps before a judge is appointed. A high court chief justice recommends a name to the governor, who sends it to the chief minister. If at any level antecedents are not found suitable, the federal government can turn the name down. He said that in this case, the names were not fresh appointments. It was their third extension.
He argued that a reason with no material basis and an opinion formed on the basis of such a reason becomes baseless. He appealed to the court to direct the parliamentary committee to ask the intelligence agencies to “behave” and whenever they send a report ensure that it is based on material facts.
DAG Raza said in his concluding remarks that parliamentary committees were a new concept and would take time to streamline. How can these judges sit on a bench with a stigma attached to them, he asked.
Published in The Express Tribune, March 20th, 2012.