IHC judges appointment: Govt cites grave error of law in SC order

Plea states, there is no law providing mechanism or any forum for the determination of the seniority of the judges.

ISLAMABAD:

The federation has sought review of a Supreme Court order for the reappointment of two Islamabad High Court (IHC) judges, claiming that “the Constitution does not assign judges of superior courts the role of appointment or removal of brother judges”.

Filed by Attorney General Irfan Qadir under Article 188 of the Constitution on Wednesday, the review petition contends, “Under Article 177 and 193 read with clause 13 of Article 175A of the Constitution, the president is empowered to make the appointment of judges.”

On December 21, the apex court asked President Asif Ali Zardari to issue notifications regarding appointment of Justice Shaukat Aziz Siddiqui as a regular judge and Justice Noorul Haq N Qureshi as additional judge for six months at the IHC as recommended by the Judicial Commission in its September 22 meeting.

Referring to the president’s concerns, the judgement said that “even if it is assumed” that “one of the participants [of the Judicial Commission for the Appointment of Judges] out of 10 was not qualified to attend the meeting of the commission” is valid, the decision on the reappointments still stands.

However, in its review petition, the federation contends, “Unless the president himself makes an appointment or issues an appointment order, no concerned authority is empowered to issue the notification of appointment in terms of Article 175-A of the Constitution. Hence the order under review suffers from a grave error of law”.



It adds, “The Constitution doesn’t assign the judges of the superior courts the role of appointment or removal of their brother judges.”

While addressing the question of seniority and its determination, the petition states, “There is no law either statutory or constitutional which provides for any mechanism or any forum for the determination of the seniority of the judges. In the absence of such a law or forum, the most relevant person for determination of question of seniority is none else than the appointing authority [president].”

That the impugned order runs contrary to the letter and spirit of the Constitution which nowhere prohibits the president to seek re-consideration by the Judicial Commission or by the Parliamentary Committee of the nominations or confirmations sent to the president respectively for appointment, it reads.

“The haste with which the instant petition has been decided by means of a perfunctory order in itself is sufficient to establish that in this case not only have there been gross violations of law but even justice was not seen to be done as per the constitutional and legal requirement of a fair trial,” says the petition.

“As a matter of practice and propriety, a reference filed by the president ought to have been decided on priority basis so that the head of state had before him the opinion of court prior to taking a final decision in the matter,” it adds.

Published in The Express Tribune, January 10^th, 2013.