The Supreme Court on Wednesday turned down federation's plea to summon presidents of Pakistan Bar Council (PBC), Supreme Court Bar Association (SCBA) and top provincial legal officers in the presidential reference case but added that the court would seek their services in case of need.
A five-judge bench led by Justice Khilji Arif Hussain and comprising Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed was hearing the presidential reference that had sought judicial advice over the appointment of judges in light of the 18th and 19th Constitutional Amendments and a constitutional petition filed against the delay of appointment of judges in the Islamabad High Court (IHC).
During the course of hearing, Justice Ejaz Afzal Khan observed that once the parliamentary committee on appointment of superior court judges endorsed the recommendation of the Judicial Commission, the Prime Minister and the President "cannot exercise" discretionary power in the matter.
Representing the referring authority, senior counsel Wasim Sajjad submitted that the Prime Minister could resend recommendations approved by the Parliamentary Committee to the President for consideration which did not affect the independence of judiciary. Sajjad further contended that it did not matter if any member of the Commission was absent form the meeting; however, proceedings of the Judicial Commission were affected in the presence of an unfamiliar person.
The Judicial Commission and Parliamentary Committee were constituted to make the process of the appointment of judges in the higher judiciary transparent as clearly mentioned in the Constitution of Pakistan, Sajjad added. He further maintained that the Judicial Commission constituted for the appointment of Chief Justice of IHC was unconstitutional, and the Presidential Reference was filed in the apex court as the role of President in the appointment of Judges was not clear.
Sajjad submitted that Prime Minister could advise the President on the issue of appointment of Judges, adding that it was the Prime Minister "who forwards the summary of judicial appointments to the President." The court observed that neither the president nor the Prime Minister could use their discretionary powers on the matter of appointment of judges in the higher judiciary.
Sajjad added that both Justice Riaz Ahmed Khan and Justice Anwar Kasi took oath as Judges of IHC on the same day; however as Justice Riaz Ahmed Khan was older than Justice Anwar Kasi, hence, Justice Riaz Ahmed Khan was eligible for the post of Chief Justice of the IHC.
He pleaded that depriving a senior judge of his right would be a blow to the independence of the judiciary. Justice Khilji Arif Hussain remarked that he along with Justice Rehmat Hussain Jaffery, Justice Athar Saeed and Justice Gulzar Ahmed were appointed on the same day as Justices of the apex court but he (Justice Hussain) and Justice Gulzar were appointed as senior judges in the Supreme Court on the basis of tenure of job, although they were junior. The bench directed the federation's counsel to conclude his argument till the next hearing on the questions raised in the Presidential Reference and adjourned the hearing till December 13.