President has no authority on judges’ appointment: SC

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Justice Gulzar Ahmed of the Supreme Court on Thursday said the decision of the Judicial Commission (JC) and Parliamentary Committee (PC) on judges’ appointment was final and the president could not use his discretionary powers in this regard.
A five-member special bench of the apex court headed by Justice Khilji Arif Hussain heard the president’s reference regarding appointment of judges to higher judiciary. In his arguments, Attorney General Irfan Qadir said the president could stop appointment of any judge having a fake degree, adding that the court could not give order on the president’s decision.
He said the constitution granted permission to the president to use discretionary powers that were explained under Article 48-1. Earlier, Wasim Sajjad, counsel for the president, continued with his arguments and said the Judicial Commission had no authority to ascertain seniority of judges. He said the role of president was not merely symbolic and he had authority to nominate judges.
Appearing before the bench on the part of the federal government, Sajjad said the criterion for the appointment of judges should be same as had been enshrined in the code of conduct, adding that the parliamentary committee rejected names of some judges, but the court brushed aside the committee’s decision.
The federal government’s counsel asserted, “How can the president act if he believes the decision by the Judicial Commission (JC) and the Parliamentary Committee was wrong, as he was the final authority to appoint judges.” Sajjad said it was misquoted in the Munir Bhatti case that the president was just to sign the notification, instead the president appointed the chief justice of Pakistan (CJP).
While giving his remarks, Justice Tariq Pervaiz said parliament could authorise the president to nominate the judges.
Justice Khilji Arif Hussain wondered how could the court grant powers to the president that were not given to him by the constitution. He observed the judiciary could not amend any letter in the constitution, so how could it amend Article-175.
Meanwhile, Justice Ijaz Afzal said the Parliamentary Committee reserved the right to return recommendations to the Judicial Commission for review.
He said the decision by the JC or the Parliamentary Committee could not be considered an advice from the cabinet or the prime minister, adding the prime minister was not authorised to even give his opinion on the matter.
Justice Tariq Pervez said if parliament had deemed it imperative, it would have entitled the president with the role in the appointment of judges.
However, AG Irfan Qadir said the president could hold back the appointment on the charges of corruption or dishonesty or if the constitution was being violated and no court was empowered to give ruling on any initiative by the president. “The president’s decision on seniority of the judges is final,” the AG said, adding that the meeting dated October 22, 2012 was not of Judicial Commission. Justice Tariq said, “You personally attended that meeting.” On this the AGP remarked, “I attended a session which was anything but not a JC meeting.”

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