ISLAMABAD: The government described on Tuesday as ‘contrived’ a hurriedly-moved petition in the Supreme Court seeking issuance of a notification confirming two Islamabad High Court judges.
Attorney General Irfan Qadir, representing the federal government, alleged before a four-judge bench that blessing of a top judicial officer could not be ruled out in the filing of the petition.
The bench comprising Justice Khilji Arif Hussain, Justice Asif Saeed Khan Khosa, Justice Ejaz Afzal Khan and Justice Ijaz Ahmed Chaudhry, however, abstained itself from granting any injunction requiring the judges to continue to perform till the settlement of the controversy.
Advocate Nadeem Ahmed, the petitioner, had sought the appointment of Justice Noorul Haq N. Qureshi and Justice Shaukat Aziz Siddiqui, whose terms were to expire on Tuesday, as regular IHC judges.
Recommended by the Judicial Commission (JC) and the Parliamentary Committee (PC) on judges’ appointment constituted under the 18th and 19th Amendments, the proposal got stuck at the presidency.
The two judges were to take up on Thursday a petition challenging the extension granted to the army chief.
According to an informed source, the President House had 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.
During the hearing, the attorney general argued that one of the requirements of filing petitions under the enforcement of the fundamental rights was that the mover should have come with clean hands.
The court expressed concern over the impediments behind the issuance of the notification by the presidency when both the JC and the PC had approved the nominations under Article 175A of the Constitution.
“Impediment is the Constitution,” the AG said and explained that the president had taken oath under the Constitution, and not under the JC.
When Justice Khosa observed that this argument was very dangerous, the AG retorted that he was very much clear that the higher functionary of the state could disregard any illegal directive issued even by the apex court.
Mr Qadir also expressed reservations over the conduct of the Supreme Court registrar and asked why he had written a letter to the Senate secretary.
“Because the Senate secretary is also the secretary of the PC,” Justice Khosa said.
When Justice Khilji said the court could grant time to the AG to seek instructions, Mr Qadir asked for a week. But the court adjourned the hearing for Thursday and held the petition prima facie to be maintainable under Article 184(3) of the Constitution.
Justice Khosa asked the petitioner how the court could order the issuance of the notification by usurping the role of the president.
In his petition, Advocate Nadeem argued that all constitutional formalities, as laid down in Article 175A of the Constitution, had been completed for extension in the term of office and for confirmation as judge of the IHC during the past one month.
Malik Asad adds: Justice Shaukat Aziz Siddiqui and Justice Noorul Haq Qureshi left the Islamabad High Court after the law ministry did not issue the notification about their confirmation and extension.
Subsequently, the IHC registrar cancelled the hearing of the cases, including the one in which the extension given to Chief of the Army Staff Gen Ashfaq Parvez Kayani has been challenged.
The judges handed over their official cars, laptops and other items to the IHC administration. They were appointed as additional judges on Nov 20 last year for a period of one year.
Explaining the reason for not issuing the notification, Law Secretary Justice (retd) Yasmin Abbasi said the composition of the Judicial Commission which recommended the confirmation and extension of the judges was not in accordance with Article 175-A of the Constitution.
According to the article, the JC should comprise the Chief Justice of Pakistan, most senior judges of the Supreme Court, a former judge of the apex court, law minister, attorney general and a senior advocate nominated by the Pakistan Bar Council.
And for appointments in the IHC, Ms Abbasi said, the chief justice and a most senior judge of the IHC should be additional members of the commission. “The notification is pending because most senior judge of the IHC is Justice Riaz Ahmed Khan, but Justice Mohammad Anwar Khan Kansi attended the JC meetings,” she said.
She said the Supreme Court was seized with the matter and the government would submit its reply at the next hearing on Thursday.
An IHC official said on the condition of anonymity that at the time of JC meetings on the appointment of judges a representation regarding the seniority of Justice Riaz Khan and Justice Kansi was pending in the law ministry. The ministry issued a notification declaring Justice Khan senior to Justice Kansi much after the JC proceedings in which the commission confirmed Justice Siddiqui as regular judge and gave six months extension to Justice Qureshi.
The official said Justice Kansi had became a member of the JC soon after his appointment in the IHC in January last year and the legitimacy of earlier JC proceedings in which Justice Kansi had participated was never questioned.
According to the IHC Act 2010, the total strength of its judges, including the chief justice, should be seven. After Justice Siddiqui and Justice Qureshi left the IHC, it has only three judges to dispose of over 10,000 cases.