IHC judges’ case: Verdict likely to be announced today
Attorney general advises court to refer to PCO judges case; amici curiae say president has no role.
ISLAMABAD:
The Supreme Court concluded its hearings on a reference filed by the president seeking to clarify his role in the appointment of senior judges, and is likely to announce its verdict today.
The reference, which included 13 questions for the court, was filed in the Islamabad High Court judges’ appointment case, the verdict for which could also be issued today (Friday).
The president had held notifications on the appointments of IHC judges, as recommended by a Judicial Commission meeting, on the grounds that Justice Anwar Khan Kasi, a member of the meeting, was not as senior as the justice he was replacing on the JC.
Heading a five-member bench, Justice Arif Hussain Khilji observed on Thursday that while a provision in article 175A of the Constitution stated that seniority would be considered in the appointment of the Chief Justice of Pakistan, no such provision existed on the appointment of high court chief justices.
While the government’s counsel, Wasim Sajjad, concluded his arguments on Thursday, Attorney General Irfan Qadir was allowed to address the court on the issue. He said the president has the ultimate responsibility to preserve the Constitution, and has the power to do so under Article 48 (2).
He advised the court to apply the same rule it had applied in its July, 31, 2009 judgment, under which 100 PCO judges were ousted from the courts on the grounds that one of the consultants in their appointments was ‘not lawful’.
He pointed out that the case is similar to this one, wherein a ‘stranger’, Justice Kasi, had attended the Judicial Commission meeting. He further said that the meeting was not a Judicial Commission meeting but was actually an ordinary meeting.
The bench, however, asked the attorney general why he had voted for the JC meeting then, to which he replied, saying he was ‘wrong’ in doing so.
On the other hand, former attorney general Makhdoom Ali Khan and former Punjab advocate general Khawaja Haris, the two amici curiae (Latin for ‘friends of the court’), said that the president had no say in the new judges’ appointment procedure.
Khan said there were some instances in the past wherein the seniority principle was not followed. He also pointed out, sarcastically, that if Justice Kasi was so influential that the entire Judicial Commission adopted his opinion in the appointment process, he must deserve the slot of the chief justice of the IHC.
Khan said that nomination of the candidates for the slot of judges was sole domain of the chief justice of Pakistan, while the executive could examine whether the candidates fulfill the required criteria.
He further said that there were no set rules to determine the issue of seniority in high courts, and suggested that the court could rely on its past judgment while giving advice to the president, since the issue was a purely legal one.
Haris, meanwhile, told the court that the president was in violation of the ‘clear, unambiguous, and mandatory’ provisions of clause 13 of Article 175A of the Constitution. “The president, by referring these person-specific questions under article 186, is attempting to achieve indirectly what he cannot achieve directly,” Haris said.
Published in The Express Tribune, December 14th, 2012.
The Supreme Court concluded its hearings on a reference filed by the president seeking to clarify his role in the appointment of senior judges, and is likely to announce its verdict today.
The reference, which included 13 questions for the court, was filed in the Islamabad High Court judges’ appointment case, the verdict for which could also be issued today (Friday).
The president had held notifications on the appointments of IHC judges, as recommended by a Judicial Commission meeting, on the grounds that Justice Anwar Khan Kasi, a member of the meeting, was not as senior as the justice he was replacing on the JC.
Heading a five-member bench, Justice Arif Hussain Khilji observed on Thursday that while a provision in article 175A of the Constitution stated that seniority would be considered in the appointment of the Chief Justice of Pakistan, no such provision existed on the appointment of high court chief justices.
While the government’s counsel, Wasim Sajjad, concluded his arguments on Thursday, Attorney General Irfan Qadir was allowed to address the court on the issue. He said the president has the ultimate responsibility to preserve the Constitution, and has the power to do so under Article 48 (2).
He advised the court to apply the same rule it had applied in its July, 31, 2009 judgment, under which 100 PCO judges were ousted from the courts on the grounds that one of the consultants in their appointments was ‘not lawful’.
He pointed out that the case is similar to this one, wherein a ‘stranger’, Justice Kasi, had attended the Judicial Commission meeting. He further said that the meeting was not a Judicial Commission meeting but was actually an ordinary meeting.
The bench, however, asked the attorney general why he had voted for the JC meeting then, to which he replied, saying he was ‘wrong’ in doing so.
On the other hand, former attorney general Makhdoom Ali Khan and former Punjab advocate general Khawaja Haris, the two amici curiae (Latin for ‘friends of the court’), said that the president had no say in the new judges’ appointment procedure.
Khan said there were some instances in the past wherein the seniority principle was not followed. He also pointed out, sarcastically, that if Justice Kasi was so influential that the entire Judicial Commission adopted his opinion in the appointment process, he must deserve the slot of the chief justice of the IHC.
Khan said that nomination of the candidates for the slot of judges was sole domain of the chief justice of Pakistan, while the executive could examine whether the candidates fulfill the required criteria.
He further said that there were no set rules to determine the issue of seniority in high courts, and suggested that the court could rely on its past judgment while giving advice to the president, since the issue was a purely legal one.
Haris, meanwhile, told the court that the president was in violation of the ‘clear, unambiguous, and mandatory’ provisions of clause 13 of Article 175A of the Constitution. “The president, by referring these person-specific questions under article 186, is attempting to achieve indirectly what he cannot achieve directly,” Haris said.
Published in The Express Tribune, December 14th, 2012.