A counsel for the referring authority on Wednesday contended before the Supreme Court that the president’s role in the appointment of judges was not mere ministerial, but he could cite reasons for the constitutional deviations which came to his notice.
Wasim Sajjad, counsel for the referring authority, resumed his arguments before the five-judge special bench headed by Justice Khilji Arif Hussain hearing a presidential reference moved under Article 186, invoking the court’s advisory jurisdiction with regard to appointment of judges to the Islamabad High Court (IHC).
The counsel said some grave departure from constitutional provisions was noticed in the instant case, over which the president could seek the court’s interpretation and his decision was subject to judicial review.
To the bench’s query over determination of seniority of the judges of superior judiciary, he replied that the executive wanted the judiciary stronger and more independent. “Who will determine seniority? At least such constitutional departures should be stopped,” Sajjad said, cautioning that if the referring authority in extraordinary circumstances confirmed the decisions of Judicial Commission and Parliamentary Committee, without noticing such deviations, then the judges in Pakistan would start determining their seniority decisions by citing their names topping the rosters. Justice Riaz Ahmed Khan was the most senior judge according to recommendations of the IHC chief justice and in accordance with the judicial norms and practices, but in his absence, Justice Anwar Khan Kasi attended the Judicial Commission (JC) meeting.
Sajjad said the constitution provided the term most senior judge but it did not contain anywhere “available senior most judge”. He said Justice Kasi was altogether a stranger to proceedings of the JC and his presence was ultra vires to Article 175A which led to annulment of the decision taken by the highest forum. Such a thing was noticed by the referring authority, who wanted the indulgence of the court to interpret the issue that would have wider future applications, the lawyer added.
He contended that in Munir Hussain Bhatti’s case, the role of parliamentary committee over appointment of judges had been in question, but a para in the said judgment written by Justice Jawwad S Khawaja made observation over the role of the president’s office, though it was never argued. He said such observations had no binding effects upon the court. To Justice Khilji Arif Hussain’s observation on the 19th Amendment, the counsel said it was adopted to implement a court’s observation substantially. Citing Al-Jehad Trust case of 1996, the counsel said there was a provision for an acting chief justice, but not for an acting senior most judge.
“If a member of the Judicial Commission, like the law minister, is absent from its proceedings, it is no issue, but what will happen if an interior minister attends the meeting in his place,” he elaborated his point.
Justice Ejaz Afzal Khan drew Sajjad’s attention to clause 14 of the Article 175A by saying that the absence of a member of the commission would not render the decision of the commission invalid.