Announcing its verdict in the judges’ appointment case, the Supreme Court (SC) on Thursday ruled that the president’s role in appointing judges was nominal and the judicial commission was responsible to determine the seniority of the judges.
A five-member bench led by Justice Khilji Arif Hussain and comprising Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed had reserved its judgment on December 21, 2012 on the presidential reference seeking advice on judges’ appointment.
The bench ordered appointment of Anwar Kasi as the IHC CJ per the previous direction of the Judicial Commission on Judges’ Appointment (JC).
However, Justice Ejaz Afzal objected to the appointment of Kasi and suggested the name of Justice Riaz as the IHC CJ in a separate note.
The court said the power to fix seniority had been assigned to the JC, therefore, the seniority rule was not applicable in appointment of the chief justice of high courts and it would be applicable only in the case of appointment of SC chief justice.
In its 102-page order, the SC stated that the president’s role in appointing senior judges was nominal and that the judicial commission was responsible to appoint senior judges according to the constitution.
The order further stated that the president was bound to take advice of the prime minister in appointing the chief election commissioner, caretaker prime minister, Public Service Commission chairman and the chief of armed forces.
President Asif Ali Zardari had sought clarity on his role in the appointment of judges through a reference, which was filed by the Law Ministry and sought advice on 13 points per Article 186.
The judgement said, “President has no powers to appoint judges in IHC. Presidential powers in appointment of judges stand restricted following the passage of 18th and 19th Amendments in the constitution. President cannot appoint judges. However, his powers in certain appointments have been spelt out in the constitution. His powers in appointment of judges are barely ceremonial. President and prime minister have been assigned no role in appointment of judges per constitution.”
“It has been made clear in Munir Bhatti case that the powers in connection with appointment of judges rest with the Judicial Commission (JC) or Judges Parliamentary Committee (JPC).The JC and JPC can elevate any judge to the office of chief justice (CJ) and recommendations of these two bodies are binding on the president.”
