Appointment of judges: Presidential query gets cold reception

Apex court turns down request for removal of certain judges from bench.

ISLAMABAD:

The government’s apparent attempt to reignite and play up the matter of the appointment of superior courts’ judges found no takers in the Supreme Court on Monday.

Hearing a widely publicised presidential reference on the matter, Justice Khilji Arif Hussain, heading a five-judge bench, observed that the Constitution itself provides answers to the questions posed in the reference. Waseem Sajjad, the government’s counsel, had held before the bench that the rules of the Judicial Commission on the Appointment of Judges were not specific, which is why the presidential reference had been filed. The president, he said, needed to be guided to form an opinion in the performance of his functions in this regard.

On the same note, the government counsel’s request for a different bench, given the nature of the matter, were also rubbished by the court.

Sajjad said the chief justice should consider forming a bench minus those judges who are members of the Judicial Commission, or minus those who had sat in the meetings in which the appointments in contention had been made. He also held that propriety demands that a larger bench should hear the case.

Justice Khilji Arif Hussain said that these matters are prerogatives of the chief justice. “We should not be considered as members of the Judicial Commission because here we are sitting as Supreme Court,” he said.

Justice Ejaz Afzal said that the chief justice has already passed an order conscious of the fact being pointed out by the counsel. However, he said the government may make a separate application regarding the larger bench. “Let’s see whether this is an issue of public importance,” said Justice Khilji.

The apex court also nominated former attorney-general Makhdoom Ali Khan and former advocate-general Punjab Khawaja Haris as amicus curiae in the case of appointment of Islamabad High Court (IHC) judges – the issue which sparked this matter to begin with.

The president had refused to issue a notification regarding the decisions taken on the appointments in the IHC by the judicial commission. Later, the apex court held that it was binding on the Presidency to issue the notification, else they would do it themselves.



Following this, President Asif Ali Zardari filed a reference last week under Article 186 to seek the apex court’s advice about his role in the appointment of judges in superior courts.

Another issue raised in this entire matter was the issue of seniority and the criteria for elevating high court judges to the Supreme Court.

Justice Tariq Pervaiz said the seniority issue should be decided on the basis of age, as had been decided by Justice (retd) Irshad Hassan when he was the law secretary, which has not been challenged till today.

The secretary of the Judicial Commission has been directed to provide the minutes of the meetings dated 27-09-2012 and 22-10-2012, in which the decisions under question were made, while the registrar of the IHC was ordered to provide the notifications of appointment of Justice Muhammad Anwar Khan Kasi and Justice Riaz Ahmed Khan as judges of the court.

Related petitions

Despite Waseem Sajjad’s request, the court refrained from issuing a notice to the Pakistan Bar Council in the case.

Justice Gulzar Ahmed, while referring Advocate Nadeem Ahmad’s petition about two IHC judges’ reappointment said that these questions can be raised in the petition, too. He questioned why this petition cannot be decided first and also inquired whether the two issues can be amalgamated.

Akram Sheikh, the counsel for petitioner Advocate Nadeem Ahmed, requested that his client’s petition be heard first. He argued that the petition goes to the root of the case. “Here is a ploy to frustrate the attempt of judges’ appointment,” he held, which has deprived the people of their fundamental right of access to justice – given that the IHC has been at a virtual standstill since this controversy erupted.

Justice Ejaz Afzal said the questions raised in the presidential reference and the petitions are inextricably linked therefore propriety demands both be heard together. The case was adjourned till Wednesday (December 12).

Published in The Express Tribune, December 11^th, 2012.