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Court asks Zardari to appoint 2 IHC judges

December 21, 2012

ISLAMABAD, Dec 21: The two judges of Islamabad High Court (IHC) who were sent home unceremoniously when their nominations following a judicial process were not approved by the highest authority are likely to be back in their office.

A Supreme Court bench asked President Asif Ali Zardari on Friday to issue notifications about appointment of Justice Shaukat Aziz Siddiqui as a regular judge and Justice Noorul Haq N. Qureshi as additional judge for six months as recommended by a Judicial Commission meeting on Sept 22.

The directive was issued on a petition moved by Advocate Nadeem Ahmed.

The court withheld its finding for the time being on a reference sent by the president to the Supreme Court by invoking its advisory jurisdiction.

Through the reference the president had sought opinion of the Supreme Court on a host of questions including the seniority dispute between Justice Riaz Ahmed Khan and Justice Mohammad Anwar Khan Kasi, both judges of the IHC.

Justice Kasi and not Justice Riaz sat in the meetings of the JC which recommended elevation of IHC Chief Justice Iqbal Hameedur Rehman as a judge of the Supreme Court and Justice Mohammad Anwar Khan Kasi to fill his position ignoring Justice Riaz.

After hearing arguments on the reference as well as the petition of Nadeem Ahmed, the Supreme Court bench reserved its ruling on Dec 14.

Mr Ahmed had sought a court direction for issuing notifications in favour of Justice Siddiqui and Justice Qureshi.

“For reasons to be recorded later, we accept this petition and direct the authorities concerned to issue notifications, thereby appointing Mr Shaukat Aziz Siddiqui, as a judge of the IHC and Noorul Haq N. Qureshi as an additional judge of the IHC, for a period of six months giving effect from the date of expiry of their earlier notifications,” said a two-page short order authored by Justice Khilji Arif Hussain the same judge who headed the bench. Both high court judges had to leave their respective offices after their term expired on Nov 20 and instead of approving their nominations as suggested by the JC the presidency returned the suggestions back to the commission with observations to reconsider the nominations since it (the commission) was not constituted properly.

Both the judges were then seized with a challenge against the extension given to the chief of army staff. The president later instituted the reference before the court.

It may be mentioned that the commission’s recommendations had been approved by the parliamentary committee (PC).

Both the JC and PC are part of appointment of superior court judges set up under Article 175A inserted in the Constitution under the 18th and 19th amendments.

The recommendations were ignored by the presidency when the presence of Justice Kasi in the meetings of the JC become contentious and a moot point in the reference.

“We are of the view that even if it is assumed that one of the members, being non-entity sat, voted and took part in the proceedings culminating in nomination, but it would not vitiate the proceedings when the JC in view of Article 175-A (8) of the Constitution has nominated by majority of its members,” the short order explained. “We are supported in our view from the judgment held by the Supreme Court in 2003 while deciding that the case of managing director of Sui Southern Gas Company Ltd Karachi versus Ghulam Abbas.”

The same view was taken in the case that presence of a stranger in a meeting will not vitiate the entire proceedings.

However, the observation made by the court was interpreted by senior lawyer Advocate Chaudhry Faisal Hussain who stated that the five-judge bench apparently had overwritten the provisions of Article 175-A (6) of the Constitution (procedure for appointment of judges).

There now is a positive element for the 100 superior court judges who were sent home after the July 31, 2009, verdict by a 14-judge bench because they had taken oath under the Provisional Constitution Order (PCO) issued by Gen Pervez Musharraf at the time of proclaiming emergency on Nov 3, 2007 or was recommended by former Chief Justice Abdul Hameed Dogar, who himself had taken oath under the PCO.

Then the court had held (in the July 31 verdict) that one consultee, if not appointed in a proper way, would vitiate the entire process of appointment of judges, Advocate Hussain explained.

Now the court had held that the majority decision will prevail even if a bad consultee participated in the proceedings of the commission, he said.