Justice Gulzar Ahmed of the Supreme Court Thursday stated that the decision of Judicial Commission (JC) and Parliamentary Committee (PC) is final with regard to judges’ appointment 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 heard the president’s reference regarding appointment of judges in higher judiciary.
Attorney General Irfan Qadir in his arguments said that the president could stop appointment of any judge having fake degree, adding that the court could not give order on the president’s decision.
He said that the constitution granted permission to the president to use discretionary powers which were explained under article 48-1 of the constitution.
Earlier, Waseem Sajjad, counsel of president, presenting his arguments said that the Judicial Commission has no authority to ascertain seniority of the judges. He said that the role of president is not merely symbolic and he had authority to nominate judges.
Appearing before the bench on the part of the federal government, Wasim Sajjad said the criterion for the appointment of judges should be same as has been enshrined in the code of conduct, adding the parliamentary committee rejected names of some judges; but, the court brushed aside the committee’s decision.
The federal government’s counsel asserted, “How the president can act if he believes the decision by the judicial Commission (JC) and the parliamentary committee was wrong, as he is the final authority to appoint judges.
Wasim Sajjad said it was misquoted in Muneer Bhatti case that the president is just to sign the notification; instead, the president appoints the Chief Justice of Pakistan (CJP).
While giving his remarks, Justice Tariq Pervaiz said that the parliament could authorise the President to nominate the judges.
Justice Arif Khilji wondered how could the court grant powers to the president, which were not given to him under the constitution. He observed the judiciary cannot amend any letter in the Constitution; how it can amend Article-175.
Meanwhile, Justice Ijaz Afzal in his remarks said that the Parliamentary Committee reserved right to return recommendation to Judicial Commission for review. He said the decision by the JC or the parliamentary committee cannot be considered as an advice from the cabinet or the Prime Minister, adding the Prime Minister is not authorized to even give his opinion on the matter.
Justice Tariq Pervez remarked if the Parliament had deemed it imperative, it would have entitled the president with the role in the appointment of judges.
The AGP Irfan said the president can hold back the appointment on the charges of corruption or dishonesty or if the Constitution is being violated and no court is empowered to give ruling on any initiative by the president.
The president’s decision on seniority of the judges is final, the Attorney General said adding 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.