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Judges’ appointment: Govt preparing reference, SC told

November 23, 2012

ISLAMABAD, Nov 23: In what analysts here see as a smart move, the government informed the Supreme Court on Friday that President Asif Ali Zardari intended to invoke the court’s advisory jurisdiction through a reference to settle once and for all issues relating to appointment of superior court judges.

The information was conveyed by Attorney General Irfan Qadir through a written statement he submitted to a four-judge bench comprising Justice Khilji Arif Hussain, Justice Asif Saeed Khan Khosa, Justice Ijaz Ahmed Chaudhry and Justice Ejaz Afzal Khan which had taken up a petition of 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 Islamabad High Court.

The statement said that a reference under Article 186 of the Constitution was being prepared to settle forever issues relating to judges’ appointment in a transparent manner.

Although the attorney general did not provide details, experts believed the reference would ask the Supreme Court what power the president enjoyed in selection of judges and whether the president needed to apply his mind or just endorse whatever recommendation he received.

The two IHC judges were nominated by the Judicial Commission (JC) and the nomination was 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.

The controversy was over the composition of the 11-member JC in which Justice Muhammad Anwar Khan Kasi sat in place of senior judge Justice Riaz Ahmed Khan who was in Saudi Arabia for Haj when the commission met.

A stalemate between the judiciary and the executive over the appointment of superior court judges is not a new development. Earlier a disagreement emerged when the PC in the first week of February last year had declined to accept a recommendation of the JC to extend the service of four senior additional judges of the Lahore High Court and two of the Sindh High Court.

Consequently, two petitions were filed in the Supreme Court -- one by Advocate Munir Hussain Bhatti and the other by the Sindh High Court Bar Association.

On March 21 last year, the apex court rejected the objections raised by the PC and ruled that the committee had overstepped the rightful jurisdiction of the JC while ignoring its constitutional boundaries. It ordered that the notification be issued immediately.

“I believe it is a smart move because it will help hammer out grey areas and thorny issues which often crop up during the appointment process,” a senior lawyer said about the government’s statement. In any case the final decision would definitely be with the Supreme Court in the matter, he added.

Former president of the Supreme Court Bar Association Tariq Mehmood appreciated the government’s move and termed it a wise decision.

Under Article 186 of the Constitution, the president may refer any question of public importance to the Supreme Court on which he desires to seek opinion.

On Friday, the attorney general requested the court to adjourn the proceedings for two weeks to enable the government to file the reference.

The court accepted the request with an observation that if the reference was not filed during this period, the IHC judges’ case would be fixed again for hearing.

Irfan Qadir informed the court that he had tried to seek an audience with the president on Thursday as directed by the court, but the president was preoccupied because of the D-8 Summit. He said he had contacted Law Minister Farooq H. Naek who told him that the president intended to file a reference to seek court’s advice on complex and legal questions which had arisen with regard to elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court to fill the only vacant seat, appointment of the two IHC judges and non-confirmation of Azim Afridi as IHC judge.

Justice Asif Khosa said the court under Article 186 could advise the president with regard to the reference.

Advocate Akram Sheikh, representing the petitioner, said the court should issue an interim order allowing the two judges to continue to perform till a final decision on the petition.