The government made its intentions clear last week – and now prepares to finalise its line of action in the face of the Supreme Court’s unequivocal stand on the judicial commission’s discretion regarding the postings and tenures of superior court judges.
Given a go-ahead on Monday by Prime Minister Raja Pervaiz Ashraf, Law Minister Farooq H Naek will finalise the contents of a presidential reference to be filed before the Supreme Court on the matter – and, according to law ministry sources, the government will file the reference next week.
The sources added that the government would seek a clarification regarding the respective domains of the judicial commission for the appointment of judges and the president regarding the appointment of judges of the superior courts as a whole. The Supreme Court last week ruled that the president’s failure to issue a notification regarding the decisions of the judicial commission was of little consequence, and the decision of the commission was final.
“The most important point [is that] we will be seeking the SC’s opinion on the president’s role in the appointment of judges: Whether he can apply his mind or [if] his role is of a mere post office,” a top legal expert of the government told The Express Tribune.
Meanwhile, the media office of the Prime Minister House confirmed on Monday that, “the prime minister directed the minister for law to prepare a reference to settle all issues in a transparent manner as per the letter and spirit of the Constitution.”
Naek discussed with the prime minister the questions to be raised before the court in the reference.
The government intends to file a reference in order to ‘obtain the advice’ of the Supreme Court under Article 186 of the Constitution with regard to the appointment of the Chief Justice of the Islamabad High Court (IHC) as well as the confirmation of IHC judges.
The issue has resulted in a judicial crisis since the president did not issue a notification as per the recommendations of the judicial commission after the law ministry raised some objections.
Two IHC judges were part of bench scheduled to take up a petition challenging the extension given to army chief Gen. Ashfaq Parvez Kayani – but both had to retire due to non-issuance of the notification.
Also in contention is the recommendation for the chief justice of the IHC after the incumbent, Justice Iqbal Hameed ur Rehman, was picked for elevation to the Supreme Court. The judicial commission had recommended Justice Muhammad Anwar Khan Kasi as new chief justice. The parliamentary committee on the appointment of judges has also endorsed these recommendations.
However, sources said that the law ministry has objected, saying that Justice Riaz Ahmad Khan was the senior-most judge and should have been appointed the new IHC chief justice.
According to a spokesman for the prime minister, the premier said that the reference will not only further improve the government’s relationship with the judiciary but also bring clarity to the process of appointing judges. It will, according to him, also reaffirm the government’s policy that all institutions should work in harmony and in consultation with each other without interfering in each other affairs.
Published in The Express Tribune, November 27th, 2012.
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To resole the problem there are few suggestions. 1. 19th amendment should be scrapped by the Parliment. 2. Judges of the higher Judiciary should be taken from the Judicial service based on their seniority and merit. This will depoliticise the Judiciary and put an end to lobbies.