Review petition filed against IHC judges' appointment verdict
10 January, 2013
ISLAMABAD: Submitting a review petition against the December 21 judgment on appointment of two judges in the Islamabad High Court, the federal government has contended that the constitution does not assign the judges of the superior courts the role of appointment or removal of their brother judges, and the president is the sole appointing authority of judges.
Attorney General of Pakistan Irfan Qadir, on behalf of the federal government, filed the Civil Review Petition under Article 188 of Constitution read with Order XXVI Rule 1 Supreme Court Rules 1980 for review of the December 21, 2012 judgement, arguing that the impugned order is devoid of proper reasons and deserves to be 'set at naught'.
"A judge cannot sit over the legality, propriety or impropriety of appointment or removal of his fellow judges. Surely all judges are equal and are the appointees of the president. Such role to the exclusion of everyone has been solely assigned to the president who eventually is to decide such issues after considering the input provided by parliamentary committee, judicial commission or the Supreme Judicial Council as the case may be," the AGP further contended.
The review petition pleads that the short order of December 21 may be reviewed, and the petition filed by Nadeem Ahmed be dismissed. The government has also demanded the Supreme Court decide the presidential reference prior to the passing of the December 21 order, as the arguments in the reference had already been concluded. The petition states that the haste with which Nadeem Ahmed's petition has been decided by means of a perfunctory order in itself is sufficient to establish that in this case not only there have been gross violations of law but even justice was not seen to be done as per the constitutional and legal requirement of fair trial.
Irfan Qadir has also contended that the president is the sole appointing authority of the judges under the constitution and there is preponderance of convention/practice that in case of persons appointed on the same day, the seniority is to be reckoned by age. 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. Interestingly, the resident under 5th Schedule of the Constitution determines other terms and conditions of service of superior court judges.
The petition added that the words "terms and conditions" of service are wide enough even to include the determination of seniority. The 1987 notification is also in furtherance of the spirit of the constitution and the same has been approved by the president. As such the judicial commission was not properly constituted. Hence the impugned order is a nullity in the eye of law.