ISLAMABAD: The Supreme Court asked Attorney General Irfan Qadir on Thursday to seek an urgent audience with President Asif Ali Zardari and advise him that he had been wrongly briefed on the appointment of two Islamabad High Court judges, causing another stalemate between the executive and the judiciary.
The attorney general is required to inform the court on Friday about the instructions received from the president on the matter.
A four-judge special bench comprising Justice Khilji Arif Hussain, Justice Asif Saeed Khan Khosa, Justice Ijaz Ahmed Chaudhry and Justice Ejaz Afzal Khan is seized with a petition filed by Advocate Nadeem Ahmed seeking issuance of a notification about six months’ extension for Justice Noorul Haq N. Qureshi and permanent appointment of Justice Shaukat Aziz Siddiqui of the IHC.
The two judges were nominated by the Judicial Commission (JC) and approved by the Parliamentary Committee (PC) under Article 175A inserted in the Constitution under the 18th and 19th Amendments. Their terms expired on Nov 20 after the President House returned the recommendations to the JC with an observation to reconsider the nominations because the commission which had finalised the names had not been constituted properly.
But the complexion of the case changed when Justice Khilji Hussain at the fag end of Thursday’s proceedings called the AG and shared the information provided by the IHC registrar that Justice Riaz Ahmed Khan who was supposed to attend a meeting of the JC as a senior judge was in Saudi Arabia for Haj when the commission had met. Justice Mohammad Anwar Khan Kasi had to attend the meeting in his place as IHC’s available senior judge.
“May be the president had not been presented with proper facts,” Justice Hussain said, adding that the president being head of the state enjoyed the highest respect and we can well understand that he was very busy, especially when so many heads of state were in the capital to attend the D-8 Summit. But the present bench would not be available in the next week. Besides, litigants were suffering a lot, he added.
“Speaking for myself, I believe the president will understand,” Justice Hussain said, adding that if he still insisted on the position taken by the government the court would have no option but to take a decision on the issue in accordance with the law.
Justice Asif Khosa said the court was not seized with the seniority case between Justice Khan and Justice Kasi and, therefore, would decide on the pleas raised by the petitioner. He expressed the hope that the AG would settle the issue because he had also played a role in resolving the issue of Swiss letter.
The AG said it was the JC which had failed to forward true facts to the president, but sought time till Monday explaining that the president might be busy because of the D-8 Summit.
Justice Ejaz said the president had no discretion to block the notification in such matters since the framers of the Constitution had left no room for this as provided to the president under Articles 48 and 75 of the Constitution.
“When the framers provided the discretion it expressly said so,” he observed.
Justice Khosa also inquired about a way in case the president received information about the credential of a nominee as judge moments before he was about to sign for issuance of the notification.
Advocate Akram Shaikh, representing the petitioner, argued that non-issuance of the notification had rendered the IHC non-functional, thus creating a constitutional void. He recalled that the JC had approved the name of Justice Siddiqui as permanent judge and allowed six months’ extension to additional judge Noorul Haq, besides recommending elevation of IHC Chief Justice Iqbal Hameedur Rehman to the apex court with a majority decision of eight members out of 11. The decision was unanimously approved by the Parliamentary Committee.
But the attorney general asked how the counsel could learn about in-camera proceedings of the JC and PC since these were not open for public.
Akram Shaikh said he had received a text message on his cellphone from the leader of opposition in the Senate who had requested that his statement should be placed on record. “There is a concordat mechanism between the judiciary and the government for appointment of judges and the executive has no role in it,” the counsel said.