President has a nominal role in judges' appointment: SC
01 February, 2013
ISLAMABAD: Giving opinions in the presidential reference regarding the appointment of judges of the superior courts, the Supreme Court has observed that under Article 175 A of the constitution, the president of Pakistan has no discretion to send the name for reconsideration of a nominee of the Judicial Commission of Pakistan and confirmed by the Parliamentary Committee, and that the president's role in the judges' appointments is merely nominal.
The court also noted that neither the constitution nor any law authorises the president of Pakistan, who is a symbolic appointing authority, to decide the seniority of judges, which even otherwise is not only against the principles of the independence of judiciary but also violative of Article 175(3) of the constitution, which provides for separation of the judiciary from the executive.
Regarding the inter-se-seniority of judges, the SC said that if the commission decides to nominate someone other than the most senior judge as the chief justice, it may give cause to question before an adjudicatory forum, and the issue may be decided there, but not in this (reference) jurisdiction.
"Although the practice of appointment of a judge other than the most senior judge is against the convention and may not be in the interest of the judiciary, the appointment of a judge not most senior as the chief justice of the high court cannot be termed as violative of the constitution," it added. It is to be noted that a five-member bench, led by Justice Khilji Arif Hussain, on December 14, 2012, after hearing arguments of Wasim Sajjad, counsel for the federation, Attorney General of Pakistan Irfan Qadir, amici curiae former attorney general Makhdoom Ali Khan, former Punjab advocate general Khwaja Haris and counsel for the petitioner Akram Sheikh, had reserved the judgement.
Justice Khilji Arif Hussain authoring the main judgement in the presidential reference stated that the president is bound to take advice of the prime minister in appointing the chief election commissioner, caretaker prime minister, Public Service Commission chairman and chief of the armed forces.
Meanwhile, the court in its main judgement said that the commission, which is assigned the function of nominating the names of the candidates for appointment of chief justices of high courts and the judges of superior courts, has no mandate to decide the inter-se-seniority of judges.