ISLAMABAD: President Asif Ali Zardari has given his assent to a reference seeking an advice from the Supreme Court to resolve a controversy over the appointment of Islamabad High Court judges.
“The president has finally given his assent to a reference to be submitted to the Supreme Court on Friday by invoking the court’s advisory jurisdiction,” a source privy to the development told Dawn on Thursday.
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.
Law Minister Farooq H. Naek has tried his best to draft the reference in a manner which dispels an impression that there is a confrontation between the executive and the judiciary. The reference has raised 13 questions of public importance and sought opinion of the apex court with a request to report its finding to the president.
One of the questions is whether the president, who has taken oath to protect, preserve and defend the Constitution, is obliged to make an appointment which, in his view, is not in accordance with the Constitution. Another appears to ask whether the Constitution prohibits individual member of the JC to initiate the names of judges for appointment to the superior courts.
On Nov 23, the court had postponed the hearing of a case relating to judges appointment for a fortnight after it was informed by the government that the president intended to move a reference on the matter.
A four-judge 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 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 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. The JC in a separate meeting also recommended elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court.
But the President House returned both 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.
Consequently, terms of the two IHC judges expired on Nov 20.
COMMISSION’S COMPOSITION: 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.
The presidential reference is likely to be filed by Law Secretary Yasmeen Abbasy on behalf of the federal government which will be represented by senior counsel Waseem Sajjad whenever the apex court takes up the case.
“The reference contains many questions raised to highlight grey areas in the procedure for appointment of judges, keeping in view the concerns expressed by the bar and other stakeholders,” the source said.
Through a resolution adopted on Dec 3, the Pakistan Bar Council called for strictly adhering to the principle of seniority as laid down by the Supreme Court in the famous 1996 Al-Jihad Trust case on the appointment to superior judiciary, particularly to the offices of chief justices.
“We want to initiate a whole new debate on the judges’ appointment process since questions have also been raised on the nomination procedure of judges by the JC,” the source said, adding that whatever verdict to be issued the court would settle once and for all issues cropped up from time to time over the appointment of superior court judges.
The reference will ask the court what power the president enjoys in selection of judges and whether he needs to apply his mind or just endorse whatever recommendation he receives.
The court had raised four questions: was the JC (which recommended elevation of the IHC chief justice to the apex court and permanent appointment and extension of the high court judges) properly constituted; will the outcome be materially different provided the JC had been properly constituted; can the process be stopped by the president after confirmation by the PC of the nominations sent by majority of members of the JC; and if the president refuses to notify then what is the way forward.