Govt says judges can’t appoint, remove brother judges

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The federation on Wednesday moved an appeal with the Supreme Court seeking a review of its short order on December 21 over the appointment of Islamabad High Court judges, contending that the constitution did not assign a role to the judges of the superior judiciary to appoint or remove brother judges. The review plea was moved by Attorney General for Pakistan Irfan Qadir under Article 188 of the Constitution read with Order XXVI Rule 1 of Pakistan Supreme Court Rules 1980 against a short order of a bench on a constitutional petition moved by Nadeem Ahmed advocate. The court had directed the respondent to issue a notification of Justice Shaukat Aziz Siddiqui as permanent judge of the IHC and granting six-month extension to Additional Judge Justice Noorul Haq Qureshi under the recommendation of the Judicial Commission. During the hearing of the said case, the federation had also moved a presidential reference invoking advisory jurisdiction of the court over his role. The federation, in the review petition, said, “The constitution does not assign the judges of the superior courts with the role of appointment or removal of their brother judges.” It said a judge could not 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 plea said while highlighting the role of president’s office in the appointment of judges of superior judiciary. It said both former additional judges of the IHC had ceased to be judges upon the expiry of their tenure on November 20, 2012 and their nomination as judges was in violation of Article 175A because the Judicial Commission had not been properly constituted. It said the president was the sole appointing authority of the judges under the constitution and there was preponderance of convention/practice that in case of persons appointed on the same day, the seniority was 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 law or forum, the most relevant person or determination of question of seniority is none else than the appointing authority,” it said. The appeal said interestingly, other terms and conditions of service of superior court judges were determined by the president under 5th Schedule of the Constitution. The review plea also reiterated that the Judicial Commission, which gave approval for two former additional judges of the high court, was not properly constituted. It added that the impugned order was a nullity in the eye of law. Referring to Article 175-A Clause 14 read with Article 67, it said the judgment of July 31 in which almost 100 superior court judges were ousted, also fully applied to the instant case.

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  1. The Law minister had some days ago said, the summary has been moved for approval. Now the President will not easily approve the summary to notify the appointment of judges. How can he go against the norms of PPP?

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