ISLAMABAD: The saga over the procedure for appointing judges in superior courts reached a critical stage on Friday with the government finally filing a reference in the Supreme Court.
Approved by the president a day earlier, the reference seeks the advice of the apex court regarding his constitutional role in the appointment of judges. It comes as a result of the Supreme Court’s earlier directions to the president to approve the judicial commission’s recommendations for the reappointment of Islamabad High Court (IHC) judges and the elevation of an IHC judge to the apex court. The Presidency failed to issue a notification regarding the commission’s recommendations.
Chief Justice Iftikhar Muhammad Chaudhry constituted a five-judge bench to hear presidential reference. Notably, the bench will be headed by Justice Khilji Arif Hussain, who had earlier headed the four-judge bench that ordered the president to approve the judicial commission’s recommendations, leading to the reference in the first place.
The government’s lawyers are expected to raise objection to this when the matter comes up for hearing on Monday (December 10). Justices Tariq Parvez, Ejaz Afzal Khan, Gulzar Ahmed and Sheikh Azmat Saeed are the other members of the bench.
The 31-page presidential reference, filed by Wasim Sajjad, raised 13 questions posed under Article 186 of the Constitution. It questioned the composition of the judicial commission, wherein Justice Muhammad Anwar Khan Kasi attended the commission’s meeting on October 22 in place of IHC’s Justice Riaz Ahmad Khan, who was in Saudi Arabia for Hajj at the time.
The judicial commission had recommended a six-month extension for Justice Noorul Haq N Qureshi and reappointment of Justice Shaukat Aziz Siddiqi. Both judges retired on November 22 after their one-year stint as additional judges of the IHC expired.
It also recommended the elevation of IHC Chief Justice Iqbal Hameedur Rehman to the apex court and the appointment of Justice Kasi as the new IHC chief justice.
But, the reference stated, as per the law ministry Justice Ahmad, being the senior-most IHC judge, should be appointed as chief justice instead of Justice Kasi. President Zardari did not approve the judicial commission and parliamentary committee’s recommendations on the same grounds.
The presidential reference insisted for the court’s interpretation on the issue. But, while hearing the petition filed by Advocate Nadeem Ahmad against President Zardari for not implementing the commission’s recommendations, the four-judge bench of the apex court had said that as far as far as the issue of reappointing Justice Siddiqui and the extension of Justice Qureshi was concerned, there was no illegality involved in the process.
The Pakistan Bar Council has also decided to become a party in the case.
The reference also sought the apex court’s advice on what the criteria should be for elevating a judge or chief justice of the high court to the Supreme Court. It sought to know whether the seniority inter-se (between or amongst themselves) as a judge of the high court or seniority inter-se as chief justice of the high court needed to be considered to elevate judges to the Supreme Court.
Published in The Express Tribune, December 8th, 2012.
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