5, April 2005	Tuesday	25 Safar 1426

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ISLAMABAD, April 4: The Chief Justice of Pakistan Justice Nazim Hussain Siddiqui, on Monday observed that the constitution did not impose any condition of appointing only the senior-most judge of the Supreme Court as its chief justice.“The president under Article 177 (appointment of Supreme Court judges), enjoys the discretion to appoint any judge of the apex court as chief justice, since there is no mention of seniority principle in the constitution,” the chief justice observed while leading a five-member bench hearing petitions challenging the 17th constitutional amendment and the dual office of the president.

Justice Iftikhar Mohammad Chaudhry, however, observed that the Supreme Court had already interpreted and decided the rule of seniority while appointing the senior-most judge as the chief justice both in the Malik Asad as well as March 20, 1996 judges case.

Justice Faqir Mohammad Khokhar, also on the bench, asked petitioner Habib Wahabul Khairi who was arguing at that time, to refer to Article 180 (acting chief justice) to substantiate his arguments.

Mr Khairi read out the provision to plead that when the constitution had obligated the president to appoint only the senior-most judge of the Supreme Court as the chief justice in the event of the chief justice being away, how it was possible that this principle should not be followed while appointing a permanent chief justice.

The larger bench comprising the chief justice, Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Mohammad Khokhar was hearing seven constitutional petitions that have been pending before the court for some time.

Earlier, the Supreme Court had issued notices to the federal government to submit comments within three weeks and had summoned the attorney general as well as the advocate generals of the four provinces. The replies have already been submitted before the court.

Mr Khairi who had challenged clauses 6 and 7 of the constitution (17th Amendment Act) concerning the retirement age of the superior judiciary, argued to abolish the age-limit of judges by amending the constitution. This, he said, would help in restoring people’s confidence in judiciary and ensure its independence.

He referred to the practice being followed in the US and UK and said in those countries judges over 85 years of age were still deciding cases.