Service tenures: Tell president to issue notification or the court will says SC

Court says recommendations of judges’ reappointment cannot be challenged.

ISLAMABAD:

The Supreme Court has made short work of a potentially bruising encounter.

A four-judge bench had a clear message for the attorney general to convey to the president on the matter of the reappointment of two high court judges: Issue the withheld notification (for reappointment) or else the court will do it.

The apex court on Thursday declared that the composition of the judicial commission was in fact legal and could not be questioned by the president’s office to quash their service tenure extensions.

The president’s office has continued to ignore recommendations put forth by a judicial commission and the Parliamentary Committee on the Appointment of Judges. The two judges of the IHC, who were on the bench of case pertaining to the validity of army chief Gen Ashfaq Parvez Kayani’s extension, currently stand officially retired.

After hours-long deliberations on the constitutional issues of the reappointment of two Islamabad High Court (IHC) judges on Thursday, the apex court found that the law ministry’s notified ‘most senior’ judge of the IHC Justice Riaz Ahmad Khan was abroad for Hajj when the judicial commission held its meeting on October 22 to finalise its recommendations, and, therefore, the recommendations were not illegal and could not be challenged. The court stated that Justice Anwar Khan Kasi attended the judicial commission meeting as per the legal procedure in place of Justice Riaz. During the hearing, IHC’s registrar confirmed that Justice Riaz had left Pakistan for Saudi Arabia on October 5 to perform Haj and came back on October 29.

Earlier in the case, while defending the president’s office for not issuing notifications as recommended by the commission and a parliamentary committee, Attorney General (AG) Qadir had objected to the composition of the judicial commission saying that the approval of these judges was illegal since the senior most judge of the IHC was not present during the meeting.

On Thursday, the bench asked the AG to inform the president about the latest proceedings, so he could issue the withheld notifications. In case of failure, the court warned, it would pass the order itself.

The judges in question are Justice Shaukat Aziz Siddiqui and Justice Noorul Haq Qureshi. On completion of their one year tenures as additional judges, both Justice Siddiqui and Justice Qureshi retired on November 20.

A four-judge bench of the apex court, headed by Justice Khilji Arif Hussain, subsequently took up a petition on the matter.



“Since we are not hearing the controversy related to the seniority of the judges, so it is good to resolve this issue amicably,” Justice Khosa told the federation’s lawyer.

AG Qadir, who was not present in the court in the morning session and was summoned to attend the proceedings, told the court that, due to the D-8 conference, President Asif Ali Zardari was very busy and the court should adjourn the case till Monday.  Justice Khilji told AG Qadir:

“Due to the non-issuance of the notifications, the IHC is not functioning properly and litigants are suffering. Therefore, instead of seeking long adjournments, convey to the president to issue the notifications of the two judges’ reappointment otherwise we will pass an order in this case.”

During Thursday’s proceedings, Qadir asked the bench how the petitioner’s counsel came to know the details regarding the in-camera proceedings of the judicial commission. “It means he was taught by someone regarding this issue,” the AG claimed.

The counsel replied: “I was informed by the leader of opposition in Senate about the internal proceedings.”

According to Sheikh, out of the 11 members of the commission, one was absent, two members had raised objection, while eight members backed the recommendations during its October 22 meeting.

Published in The Express Tribune, November 23^rd, 2012.