President has no option but to issue notification: SC

Appointment of IHC judges

Admits appeal against non-issuance of notification;

Justice Khosa asks AG to seek govt instructions on whether he has to quarrel with the court or argue patiently

ISLAMABAD: The Supreme Court on Tuesday observed that the president had no option but to issue a notification for the appointment of Islamabad High Court (IHC) judges.

A four-member bench of the apex court, headed by Justice Khilji Arif Hussain and comprising Justice Asif Saeed Khan Khosa, Justice Ijaz Afzal and Justice Ijaz Chaudhry, heard a constitutional petition of Advocate Nadeem Ahmed filed against the federal government for not issuing the notification of confirmation of IHC chief justice and two judges of the same court despite completion of all constitutional formalities.

Declaring the petition as maintainable, the Supreme Court directed the Attorney General of Pakistan to seek instructions from the government and inform it by November 22.

The petitioner had contended in the petition that IHC Chief Justice Iqbal Hameedur Rehman and judges, Justice Noor-ul-Haq N Qureshi and Justice Shaukat Aziz Siddiqui, were confirmed on their respective positions by the Judicial Commission of Pakistan (JCP) and Parliamentary Committee for the Appointment of Judges but the government was deliberately delaying the notification for the confirmation of these judges.

Appearing on notice, Muhammad Akram Shaikh, the counsel for the petitioner, submitted that after the 18th and 19th constitutional amendments, the president had no authority to stop the notifications recommended by the JCP and the parliamentary committee on appointment of judges.

At this, Justice Asif Saeed Khan Khosa inquired as to whether the apex court was being asked to assume the president’s role. He questioned as to how the court could do it and issue direction for issuance of the notification.During the hearing, Justice Asif Saeed Khosa remarked that in Article 175 (A), there was no mention that the president could return the nomination of any judge.

Justice Ijaz Afzal said that the president had no option but to issue a notification for the appointment of a judge. During the hearing, Attorney General Irfan Qadir raised an objection over the maintainability of the plea and contended it appeared to be a manufactured plea with blessings of some high judicial personalities.

He said Article 184 (3) required that a person seeking relief under the same provision should come up with clean hands.To the court’s query, he, however, contended that the names of IHC judges were recommended by the Judicial Commission. He said that the Constitution was the only impediment in issuance of the notification, adding that he was very much clear about the constitutional provisions, and the state functionaries, including the president, could disregard any unconstitutional direction given by the Supreme Court.

Justice Khosa remarked it means that anyone can reject a court verdict. He observed that in 1987, the court had decided that people could not ignore decisions of the lawful courts; however, they had rights to avail remedies from the appropriate forum.

On the aggressive attitude ofthe attorney general, Justice Khosa asked Irfan Qadir to seek instructions from the government whether he was there to quarrel with the court or talk with patience.

The AG replied that the microphone was loud, not he.

Justice Khosa told the AG that his attitude was often aggressive towards the court. “You may speak loud but speak gently,” he told Irfan Qadir.He directed the AG to seek instructions from the government and inform the court by November 22 and adjourned the hearing.

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