ISLAMABAD: Amid an ongoing debate on judicial nod for appointments to top constitutional positions, the Islamabad High Court (IHC) has termed it conflict of interest if its chief justice is involved in the process of appointments falling under executive domain.

In response to the request of the ministries of climate change and law for consultation on the appointment of chairperson of the Environmental Protection Tribunal, IHC Chief Justice Athar Minallah has conveyed his opinion through the court registrar in which he has pointed out repercussions of involving the judiciary in such consultative process.

The government has nominated retired Justice Zia Perwez for this position.

The IHC chief justice has opined that since the appointing authority of the chairperson is the federal government, therefore, such appointment may be challenged before the high court.

Ministries sought opinion on selection of Environmental Protection Tribunal chief

Moreover, since the orders of the tribunal are challenged before the IHC therefore the judiciary’s involvement in the appointment of its head would be against the principle of administration of justice.

“The Constitution has been framed on the foundation of the principles of trichotomy of power between the executive, legislature and the judiciary… consultation in matters which are of an executive nature and do not relate to the appointment of judicial officers in the courts has to be understood and interpreted in conformity with the principles of trichotomy,” Justice Minallah says.

“The involvement of Chief Justice of a High Court in appointments other than that of judicial officers of the courts established under Article 175 of the Constitution neither [is] desirable nor appears to be in consonance with the scheme of the Constitution.”

“However, in the case in hand, the legislature has explicitly provided that the appointment of chairperson of the Environmental Tribunal shall be subject to consultation with the Chief Justice. I am therefore fulfilling my statutory obligation having regard to the principles highlighted in this opinion,” the document reads.

“I am of the opinion that propriety requires me to refrain from commenting on the specific person who has been proposed to be appointed as chairperson of the Environmental Tribunal, having regard to the scheme of trichotomy and separation of powers,” it says, adding that the proposed chairperson is a retired judge of the Supreme Court but “in my personal opinion, it should be avoided.

“Likewise, I am not in favour of appointment of a sitting or retired judge of the High Court as the chairperson of the Tribunal despite the unambiguous language of [the statute].”

Justice Minallah advises: “In the wake of the importance of environmental concerns and the looming threat to the human race due to negative human activities it has become inevitable to ensure that only such person is appointed who is not only eligible but is also dynamic and known for his experience, knowledge and commitment in the field of environmental law and science.”

The chief justice says that Pakistan has the distinction of having eminent professionals such as Dr Pervaiz Hassan, who are acknowledged internationally for their contribution in the field of environmental law and science, adding that both the ministries in consultation with other stakeholders may consider a review of the eligibility criteria regarding the appointment of the chairperson of the tribunal.

Concluding the opinion, Justice Minallah makes it clear that “the federal government is not required to seek approval of the chief justice of this court regarding a particular person because this is likely to breach the principles highlighted in the consultative opinion”.

Published in Dawn, August 5th, 2021