In a response to a presidential reference on the issue of judges’ appointment, the Supreme Court on Thursday opined that the president was bound to approve the recommendations put forward by the Judicial Commission.In its 102-page response to the 13 questions raised by the reference, a five-judge bench also declared valid the appointment of Justice Mohammad Anwar Khan Kasi as chief justice of the Islamabad High Court (IHC), though it declared Justice Riaz as the most-senior judge of the IHC.

The reply added that a decision on the seniority of judges could not be made through a presidential reference and the case of Justice Riaz and Justice Kasi seniority was not relevant. It said that the Judicial Commission (JC) could recommend someone other than the most senior judge to be made the chief justice of a high court, as per the principles laid down by the SC in Al-Jehad Trust case. However, the JC could also state its reasons for doing so.Justice Khilji Arif Hussain, who authored the main part of the response also stated that the president is bound to take advice of the prime minister in appointing chief election commissioner, caretaker prime minister, chairman Public Service Commission and chief of armed forces.

The court’s reply says that the president and the prime minister have no discretionary role with respect to the appointment of judges.It added that after the passage of the 18th and 19th amendments, the president only enjoyed nominal authority on the matter. It says that in terms of Article 175A of the constitution, the President has no discretion to send the name of nominees of the Judicial Commission (JC) confirmed by the Parliamentary Committee (PC) for reconsideration.The court also noted that neither the constitution nor any law authorises the President, a symbolic appointing authority, to decide the inter se seniority of judges, which even otherwise is not only against the principles of independence of judiciary but also violative of Article 175(3), which provides for separation of the Judiciary from the Executive.

The bench, led by Justice Khilji and including Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed, had reserved the judgement on December 14, 2012, after hearing the arguments of federation counsel Wasim Sajjad, Attorney General for Pakistan, amicus curiae ex-AGP Makhdoom Ali Khan and Khwaja Haris, former Punjab advocate general and petitioner’s counsel Akram Sheikh.According to Justice Ejaz Afzal Khan, who wrote a lengthy additional note, though the president has no power to return a nomination to any of the tiers it has passed from, even if it is violative of the constitution or the law, the President at any rate shall not appoint a person a judge of the Supreme Court or chief justice of a high court whose nomination, in his opinion, is against the constitution and the law.

The court said that the judicial commission, which is assigned the function of nominating the names of the candidates for appointment of chief justices of high courts and the judges of superior courts by taking in consideration their legal competency etc, who meet the minimum qualification provided by articles 177(2) and 193(2) has no mandate to decide the inter se seniority of Judges.“On having dilated upon the questions referred to by the President of Pakistan and opinion recorded hereinabove, we are of the opinion that Mr Justice Riaz Ahmad Khan is senior most judge of the Islamabad High Court.” Although the practice of appointment of a judge other than most senior Judge is against the convention and may not be in the interest of the judiciary; however, the appointment of a judge not most senior as chief justice of the high court cannot be termed as violative of the constitution.Though it is desirable that the most senior judge of the high court should be appointed as chief justice of that court; however, in view of clauses 2 and 3 of Article 175A read with Clause 5, appointment of a not most senior judge as a chief justice is not violative of any provision of constitution.

“In this view of the matter, the Advisory Jurisdiction of the Court is not suitable for such a determination, as the person whose rights are likely to be affected is not before us.”Anyone, if aggrieved, by the determination of his seniority by the courts being paterfamilias in the absence of rules, can seek remedy from the court of competent jurisdiction. However, in the absence of specific guideline it is expected from the constitutional functionaries to regulate the exercise of their discretionary power in the matter as per norms emerging from the actual practice and convention, and legitimate expectancies.Regarding the amendment in JCP rules, the court also says that the wisdom behind the rules framed by the Commission is that the Chief Justice of Pakistan or the chief justice of the concerned high court is the best person to practically/technically evaluate a person's calibre to be nominated as a judge, including his legal competence and integrity.

The CJ of the high court holding the highest office in the judicial hierarchy of the province is the best person to know about all the judicial officers’ working... and he recommends a person to be appointed as a judge of the superior courts.Justice Eajaz Afzal also observed that transparency in the proceedings cannot be affected by holding it in-camera if every member consciously and conscientiously gives his input in the nomination, keeping in view its overall impact on the institution on the one hand and society at large on the other.“For the constitution which makes obedience to the constitution and the law the inviolable obligation of every citizen would never ever require a person no less than the President to do something against the constitution and the law.” Nor would his oath of office, permit him to do any such thing. Reference may well be made to articles 177 and 193 of the constitution and Oath of the President.