The Supreme Court on Sunday night clarified categorically that recommendations of the SC chief justice are binding on the president and any deviation would be tantamount to a subversion of the constitution.
The remarks were made by the registrar of the SC following a concerted campaign on different media channels on Sunday against the recommendations of chief justice of Pakistan regarding appointment of new judges.
Registrar Dr Faqir Hussain, told The News: “The constitution clearly states that appointment in Supreme Court is made by the president after consultation with the chief justice of Pakistan. The word consultation has been interpreted in the judges-appointment case of 1996. It is clearly laid down in this judgment that consultation has to be purposive, meaningful and that ordinarily the recommendations of the chief justice of Pakistan have primacy and binding on the executive.”
Dr Faqir further said: “Chief justice is better placed to know the qualifications, calibre and professional standing of a candidate for the position of the judge in Supreme Court. So his recommendation ordinarily is binding on the president and will have to be accepted, will have to be approved except for sound and valid reasons to be communicated to the chief justice which is justiciable. These reasons are open to scrutiny to the court of law and court can give judgement on validity of the reasons given by the president. So, far all practical purposes, the recommendations are binding on the president. Any deviation from it would be contravention of the constitution and subversion of the constitution.” Dr Faqir concluded with the word, “This is the legal position.”
Former Chief Justice of Pakistan Justice Saeeduz Zaman Siddiqui told The News late Sunday night that the president could differ with the recommendations sent by the chief justice of Pakistan regarding appointment of some judges in the apex court by giving valid reasons which could later be examined the Chief Justice.
“But under the law and the constitution neither the president nor the prime minister or any other executive authority has any power to recommend any new name,” said the former chief justice. He said that a name could only be recommended by the chief justice for the appointment in Supreme Court.
A full-fledged campaign, apparently backed by the law ministry’s top guns, reached its peak Sunday night when it was continuously repeated that the prime minister had changed the recommendations of the chief justice and had sent to the president the name of Justice Khawaja Sharif as judge of the Supreme Court and recommendation of the Justice Saqib Nisar as Chief Justice of the Lahore High Court.
While the chief justice had sent the recommendation of elevation of Lahore High Court judge Justice Saqib Nisar as the judge of the Supreme Court and recommended appointment of the retiring judge Justice Khalil-ur-Rehman Ramday as an ad-hoc judge of the Supreme Court.
However, certain top guns of the law ministry started a malicious campaign in the media against the recommendation of the chief justice giving wrong references of the Al-Jihad Trust Case. These references were even rebutted by the petitioner in the Al-Jihad Trust case and chairman of this trust senior advocate Habib Wahab-ul-Khairi and other top constitutional experts of the country including former Chief Justice Siddiqui.
According to sources, by sending Justice Khawaja Sharif to the Supreme Court, some hawkish legal advisors of President Zardari were planning to avoid the recommendations of Justice Khawaja Sharif, which he gave for the appointment of new judges in Lahore High Court. New names of judges may then be sent for the LHC.
However, senior lawyer and former judge of the Balochistan High Court, Justice Tariq Mehmood told The News that recommendations regarding appointment of new judges given by any high court chief justice always remain intact even if that chief justice retires or is transferred from his position. Spokesman of the president Farhatullah Babar told this scribe that the news being run on different TV channels regarding some final decision by presidency were wrong.
