Judges’ seniority the only valid question asked: SC

Five-member bench set to conclude hearings on reference today.

ISLAMABAD:

Despite continued efforts by the government’s counsel to build up the presidential reference on judges’ appointments, the matter is likely to be made short work of by the Supreme Court – which may even conclude hearings today.

During Wednesday’s hearing, a five-member bench headed by Justice Khilji Arif Hussain rejected Advocate Wasim Sajjad’s request of seeking the assistance of Attorney General Irfan Qadir, the four advocate generals of the provinces, the vice chairman of the Pakistan Bar Council (PBC) and even the president of the Supreme Court Bar Association (SCBA).

At the outset, the no-nonsense bench separated the matter from the rhetoric in the presidential reference.

Addressing the government’s counsel, Justice Ejaz Afzal Khan observed, “You have framed many questions in the reference but the only question which requires an answer from this court is the seniority issue.”

Seniority issue

A Judicial Commission had recommended a six-month extension for Justice Noorul Haq N Qureshi, a permanent appointment of Justice Shaukat Aziz Siddiqui in the IHC and elevation of IHC Chief Justice Iqbal Hameedur Rehman as a judge of the apex court. But the president held the notifications of these appointments on the ground that Justice Kasi was junior than Justice Riaz and therefore he questioned the very constitution of the JC that gave these recommendations.



Later, the apex court held that it was binding on the Presidency to issue the notification. Following this, President Zardari filed a reference under Article 186 to seek the apex court’s advice about his role in the appointment of judges in superior courts.

Govt’s stand

Sajjad, representing the govt’s reference in the court, argued that the issue at hand was not ordinary since it was a question of the seniority of judges and that the endorsement of any recommendation by the president would create consternation among the judges of the country.

Sajjad added that the reference was filed keeping in view the independence of the judiciary and that the president would act in accordance to whatever guidelines are suggested by the court.

Arguments to wind up

Advocate Sajjad completed his arguments on five out of a total of 13 questions raised in the reference on Wednesday, and is likely to conclude his arguments by today.

Justice Khilji observed that two amicus curiae (Latin for “friend of the court”) Makhdoom Ali Khan and Khawaja Haris will be asked to complete their arguments so that the court may come up with a conclusion on Thursday.

President’s role

The counsel also emphasised the need for an interpretation of the president’s role on the appointment of judges in the superior judiciary after the 19th amendment.

The bench reiterated that, in the new process of judges’ appointment, the role of the prime minister and president was just ministerial, prompting Sajjad to question how the head of the state’s role could be considered ‘just ministerial’.

Justice Sheikh Azmat Saeed, however, in turn, questioned whether the government wanted a presidential system in the country.

Justice Khilji recalled that the apex court had held in the 2011 Munir Hussain Bhatti case that both the president and prime minister have mere ministerial and administrative role in matters of the appointment of judges.

He also referred to a speech by Pakistan Peoples Party Senator Raza Rabbani, in which he had said that the president’s and the premier’s powers had been delegated to the parliamentary committee.

Published in The Express Tribune, December 13^th, 2012.