IHC judges case: Role of president, PM already clarified

ISLAMABAD:

The government may have filed a presidential reference in the Supreme Court regarding the appointment of judges, but the effort may yet turn out to be a damp squib. 

As the Supreme Court readies itself to hear the reference, in which the president has sought clarity on his role in the appointment of judges, it turns out the apex court had earlier already issued two judgments that cover a vast portion of the reference.  A five-member bench of the Supreme Court is set to hear the reference from Monday (December 10).

However, in a 2011 case – ‘Munir Hussain Bhatti Vs Federation’ 2011 – the Supreme Court held that the president and the prime minister had no power and authority to differ with the decision of a parliamentary committee under the “new constitutional dispensation.”

The judgment read, “…When clause 1 of article 175A is considered, a bare reading of the same shows that the commission has been created for the appointment of judges of the constitutional courts. Thus, while the president previously made the appointments on the advice of the prime minister, both have now been left with nominal ministerial roles and their powers, in the words of chairman of the constitutional body, have been taken away. The prime minister is now obliged to simply forward the confirmation made or deemed to have been made by the Committee to the president and the president equally is obliged to make the appointment on the basis of such confirmation.”

In 2012, in a case titled ‘Rana Aamer Raza Ashfaq vs Minhaj Ahmad Khan’, the Supreme Court held that constitutional intent and mandate are one of the fundamental values of our constitutional system, and that the mandate of the law be given effect.

The court held that a summery tendered by the Punjab chief minister to the governor (Sardar Latif Khosa) for the appointment of the vice chancellor of the Bahauddin Zakria University sent after reconsideration shall be deemed to have been acted upon and the department concerned may issue the requisite notification accordingly.

The two judgments were also part of a letter dispatched by Supreme Court Registrar Faqir Hussain to the principal secretary to the prime minister on November 19, 2012, a day before the service tenures of IHC two judges expired.

The letter asked for the issuance of a notification for a six-month extension for Justice Noorul Haq Qureshi as an additional judge and confirmation of Justice Shaukat Aziz Siddiqui as a judge of the IHC, under article 175A of the Constitution.

The presidential reference, filed through Wasim Sajjad, contained 13 points and had, however, also questioned the composition of the Judicial Commission.

Published in The Express Tribune, December 9^th, 2012.