Justice Khilji Arif Husssain's five-member bench was hearing the concluding arguments of Sajjad and Attorney General for Pakistan (AGP) Irfan Qadir on the Presidential Reference. Sajjad and Qadir pleaded that the Judicial Commission of Pakistan (JCP) was not a political body; hence there was no need to hold in-camera meetings. The Constitution, according to Sajjad does not bar any member of the JCP from proposing anyone for appointment as a judge in the superior court; however, the Commission rules stipulate that only the Chief Justice has the right to propose a name.
Justice Azmat Saeed Sheikh observed that the Parliamentary Committee's (PC) meeting was in-camera as was Commission's meeting. The AGP argued that in Article 48 of the Constitution the President's discretionary powers were quite clear. Justice Gulzar Ahmed observed that in the appointment of judges the President "can not" use his discretionary powers, and under Article 175 (A) of the Constitution the Prime Minister sends a summary for judges' appointments to the President.
Qadir pleaded that the court had no authority to pass judgement on any action by the President arguing that the President could withhold the appointment of any judge if he received information that the judge was involved in corruption or possessed a fake degree.
He further said that on the issue of judges' seniority, "the President's decision is considered to be final." Referring to the 1987 notification on presidential approval of appointment of judges based on seniority, the AGP said that the Commission's meeting of 22 October was illegal. Justice Khilji Arif Hussain responded that the bench had to decide whether or not the President had used his power validly, adding that the AGP also participated in the JCP meeting which a approved the judges' appointment against which decision the presidential reference was filed.
The AGP said: "I accept my mistake."
The AGP further maintained that for the Chief Justice of Pakistan to propose any name for appointment in the superior judiciary was violative of Article 175 (A); and argued that all members of the JCP should be equally empowered to recommend anyone. The AGP pleaded that PC was bound to record reasons if it refused the recommendation of the JCP relating to appointment of judges, adding that the Commission should also give reasons in writing if it accepted anyone's appointment as a judge in the superior court. Qadir further said Supreme Court's jurisdiction was not unlimited.
Justice Azmat Saeed Sheikh remarked that it was a tradition in the Subcontinent for the Chief Justice to propose a name for appointment as judge in the superior court. Makhdoom Ali Khan an amicus curiae, said the President had no role in the appointment of judges after the passage of 18th Amendment. He referred to Hasba bill wherein it was decided that the President had to implement court's advice, "which is the law."
Another amicus curiae Khawaja Haris, pleaded that seniority was no basis for the appointment of Chief Justice of a High Court. According to him, a person who is appointed as judge could seek a remedy against the decision of JCP and PC. The bench asked Akram Sheikh, the counsel for petitioner Nadeem Ahmed, to argue the case on Friday (today) before it adjourned the hearing of case till December 14.