While suspending Parliamentary Committee’s decision wherein it did not confirm the extension to two additional judges of the Sindh High Court, The Supreme Court of Pakistan has restrained the federation from issuing notification in pursuance of the committee’s recommendations. About two weeks ago a two-member bench had overruled the decision of the Parliamentary Committee, which had denied extension to four additional judges of Lahore High Court - Justice Muhammad Yawar Ali, Justice Syed Mazahir Ali Akbar Naqvi, Justice Mamoon Rashid Sheikh and Justice Muhammad Farrakuh Irfan Khan. The Parliamentary Committee on February 22 rejected the Judicial Council's recommendations for two additional judges of the SHC namely Justice Mohammad Tasneem and Justice Salman Hamid. A four-member bench headed by Justice Mahmood Akhtar Shahid Siddiqui and comprising Justice Jawwad S Khawja, Justice Khilji Arif Hussain and Justice Tariq Pervaiz was hearing the constitution petitions of Sindh High Court Bar Association (SHCBA), Munir Hussain Bhatti Advocate and Kamran Murtaza against the PC for not confirming the nomination of two additional judges of SHC and four additional judges of LHC respectively.
Makhdom Ali Khan, counsel for Munir and Murtaza, informed the court that he had not yet received the committee’s reasons. However, the bench said that it had access to the reasons for not confirming the four additional judges of LHC. Additional Attorney General K K Agha appearing on behalf of the federation stated that the petitions filed under Article 184(3) was not maintainable as the matter was not of the public importance and even the PC’s decision of not confirming LHC and SHC judges names had not violated the fundamental rights. He said, “Do we want that the committee to become ‘rubber stamp’ ? ” Justice Tariq Pervaiz questioned whether it was appropriate for the public to know what reasons the 8-member Parliamentary Committee had given for not confirming the additional judges of LHC. He said Khyber Pakhtunkhwa bar has passed a resolution condemning the PC for not confirming the judges’ names. Justice Jawwad asked the AAG if a person appeared before the court and said he had some reservations about the PC’s verdict then should the court entertain his petition or not? He said the petitions under Article 184(3) had not been filed by the affected judges, but the lawyers and the bar association.
K K Agha asked, “How could we gauge the public interest and how the judges’ appointment is related to the independent of judiciary?” He said when the judges were deposed the people came on the streets and reacted but it did not happen on 3rd November 2007, as the people did not march on the streets against the proclamation of emergency. Justice Shahid Siddiqui stated the committee was obliged to give reasons if it refused JC’s nominations. He questioned who would analyse the reasons whether people or court? The AAG replied though he had not yet seen the reasons but in his opinion if the reasons were justiciable then it could be discussed in the court. Justice Jawwad stated, “Can we ask any organisation to hold poll on the issue of not confirming judges, and if there is 51 per cent votes in favour or against then can it would show public interest.” The AAG stated in the case Jamaat-e-Islami vs federation in which the party had challenged the president’s move to contest elections twice. He said it was the public interest but did not violate the fundamental rights. There was the great public debate not in media, but issue was discussed on the streets. Makhdom Ali Khan touched the issue of maintainability. He said there was difference between public outcry and protest. He said that the court had to decide what is authority of the PC regarding the appointment of judges. The hearing was adjourned for Tuesday.