ISLAMABAD: The Supreme Court on Wednesday rejected petitions challenging the mode of appointment of superior court judges through the Judicial Commission — a judicial forum constituted under the 18th Amendment to the Constitution.
A three-judge bench of the apex court headed by Justice Asif Saeed Khosa dismissed the two petitions on the grounds that vires of Article 175A, which was introduced through the 18th Amendment, had been upheld by the Supreme Court while deciding the 2013 presidential reference on the appointment of the Islamabad High Court judges.
The petitions were moved by A.K. Dogar of the Pakistan Lawyers Foundation and District and Sessions Judge Syed Asghar Ali Shah, who had sought that high court judges be appointed through competitive examinations.
In its order, the Supreme Court observed that the Judicial Commission (JC) Rules 2010 on the appointment of judges were framed under the mandate of Clause 4 of Article 175A. And after examining the rules the Supreme Court had held that they were not repugnant to the Constitution.
The petitions were dismissed after Deputy Attorney General Sajid Ilyas Bhatti submitted a statement on behalf of the government, saying the law ministry had no role in the appointment of high court judges in terms of Article 175A but only responsible for issuing notifications about the appointments after these were approved by the president after being recommended by the JC as well as an eight-member parliamentary committee.
The statement also emphasised that the petitioners had failed to make out any case for revision of the procedure of nomination of high court judges in the light of Article 175A read with rule 3 of the JC rules.
The procedure for appointment of high court judges provided in Article 175A is in accordance with the intent of the legislature, the government reply explained, adding that any attempt to subvert, replace or modify the procedure will be against the Constitution.
Referring to the petition of Mr Shah, which was later dismissed for being “misconceived”, the statement said the suggestion was impracticable and ultra vires of the Constitution.
The government said that chief justices of the high courts were “best equipped” to make responsible nominations.
In its order, the Supreme Court noted that Mr Shah had sought a review of the policy for selection of judges but had failed to describe a better policy.
The petitioner had contended that the practice under which the Chief Justice of Pakistan and chief justices of high courts nominated individuals as judges should be improved because rule 10 of the JC rules was not appropriate.
Mr Dogar — who argued through his petition because he was indisposed — contended that it was a fundamental right of every lawyer who was qualified to be a judge under Article 193(2a) of the Constitution after practising as an advocate of a high court for not less than 10 years that he or she should be considered for such a position.
Mr Dogar’s petition argued that Article 175A should not be read in isolation but should be interpreted along with Articles 2A, 9, 18 and 25.
He said that rule 3(ii) of the JC rules was ultra vires to the ‘equality of treatment’ under Article 25 and principle of ‘equality of opportunity’ enshrined in Article 2A of the Constitution.
Published in Dawn October 27th, 2016