Presidential reference: no easy way out
By: Nasir Iqbal
ISLAMABAD: The Supreme Court hearing a presidential reference on the appointment of Islamabad High Court judges on Thursday looked perplexed how to ignore the oath that the president had taken like judges to obey the law that recognises a senior judge as legitimate expectant for elevation.
“If we go by the oath of the president, he is required to obey the law which says that the senior-most judge will have the legitimate expectancy,” Justice Ejaz Afzal Khan, one of the members of a five-judge bench, observed. Explaining further, he asked whether the president was bound to appoint Justice Muhammad Anwar Khan Kasi as the next chief justice of the IHC instead of Justice Riaz Ahmed Khan, and whether by doing so the president would not violate the Constitution and his own oath.
But Advocate Makhdoom Ali Khan, one of the amici curiae appointed by the court to assist it in the matter, cautioned that if the court held that recommendations of the Judicial Commission (JC) appointed under the 18th and 19th Amendments were justiciable, the judicial scrutiny would be across the board and the appointment of even Supreme Court judges in future would be called into question before a civil judge.
The counsel said he could not find any provision in any law, not even in the 1987 letter of Justice Irshad Hasan Khan which developed the criteria of seniority, to vest the president with the authority to determine seniority of judges.
After the 2011 Munir Hussain Bhatti case, he emphasised, the president was left with no authority to reopen the debate by sending the recommendation of the JC back to it. Reopening of the entire exercise of appointment of judges would mean allowing the president to refuse any recommendation even approved by the Parliamentary Committee (PC) on the basis of intelligence reports.
Earlier, Attorney General Irfan Qadir contended that the JC had not been properly constituted because Justice Kasi attended its meetings in place of Justice Riaz. To substantiate his argument, he cited the July 31, 2009, judgment in which over 100 judges were ousted only because of the reason that one of the consultees (former chief justice Abdul Hameed Dogar) was not qualified to recommend the names.
If the court was to apply its own judgment of the post-restoration period, he said, the two IHC judges should not to be considered for reappointment.
The attorney general, who is also member of the JC, said the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA) had expressed serious reservations over the manner in which the commission was functioning. “This is a sad reflection on the performance of the JC.”
The AG regretted that the exercise of meritocracy in JC meetings was missing as in reality all judges toed the line and no reason whatsoever was advanced by anyone and absolutely no application of mind was demonstrated.
“It defeats the purpose of the 18th and the 19th Amendments in totality and the general impression is that the people close to a certain section of the present judiciary are elevated,” he added.
Mr Qadir argued that transparency required that proceedings of the JC should be open to the public gaze, even to the media, and insisted that when the president was specifically empowered to make the appointment of judges, he could act in his discretion, though it should be exercised fairly, justly and in a manner in which he acted in accordance with oath of his office.
“The president can act in his discretion if it has been brought to his notice that the degree of a candidate is fake on which he can refuse, though after giving reasons,” the AG argued.
Similarly, he said, the president could refuse if he was informed that the candidate as a matter of routine engaged in immoral activities or a habitual offender or a number of corruption cases were pending against him, or it comes to the notice of the president that the appointment was against some provisions of the Constitution or the law.
Referring to the Munir Hussain Bhatti case, the AG insisted that the court had not been properly assisted in the matter. In the absence of any law or mechanism for determination of seniority of judges, he argued, the most relevant person for determination of question of seniority was none else than the appointing authority, who was the president.
Khawaja Haris, another amicus curiae, said that after the 18th and 19th Amendments the role of the president in the appointment of judges had been assigned to the PC.
Even if Justice Kasi was not a senior judge, the entire proceedings of the JC would not be vitiated merely of this reason because the absence of Justice Riaz was not his fault, he said and suggested that at best his vote in favour of any candidate could be discounted and whatever left would hold finality.