SC admits for regular hearing presidential reference over judges’ appointment

ISLAMABAD: A five-member larger bench of the Supreme Court admitted for regular hearing on Monday a reference filed by President Asif Ali Zardari seeking opinion of the apex court under its advisory jurisdiction on controversy over elevation and appointment of superior courts’ judges, particularly judges of the Islamabad High Court.

The bench comprising Justice Khilji Arif Hussain, Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed, after preliminary hearing adjourned the proceedings for Wednesday.

The bench also sought complete record of the Judicial Commission pertaining to six-month extension in the tenure of Justice Noorul Haq N. Qureshi and permanent appointment of Justice Shaukat Aziz Siddiqui of the Islamabad High Court and elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court and appointment of Justice Muhammad Anwar Khan Kasi as next chief justice of the IHC.

The court directed the Secretary Judicial Commission to produce record of commission’s meeting held on September 29 and October 22. Besides notification pertaining to Justice Muhammad Anwar Kasi and Justice Riaz Ahmad Khan have also been sought.

The court also issued notice to Attorney General, however noted that since Attorney General was a member of the Judicial Commission, thus the decision about his presence in the case will be taken on next hearing.

The court appointed former Attorney General Makhdoom Ali Khan and former Advocate General Punjab Khawaja Haris Ahmed as amicus curiae friends of the court in the matter to assist the court. At the onset of hearing, Waseem Sajjad, counsel for the federation, requested for formation of a full court to hear the reference in view of its importance.

However‚ the bench turned down his request stating that it was the prerogative of the Chief Justice to constitute a bench or full court. The court also noted that the Chief Justice had also given his decision on the application for full court to hear the reference.

The bench also heard the petition filed by Advocate Muhammad Akram Sheikh on behalf of petitioner Advocate Nadeem Ahmed seeking an early disposal of the case. Akram Sheikh contended that it was a conspiracy against the citizens of Islamabad as IHC had badly affected due to shortage of judges.

The petition had sought issuance of a notification about a six-month extension for Justice Noorul Haq N. Qureshi and permanent appointment of Justice Shaukat Aziz Siddiqui of the Islamabad High Court. Their terms expired on Nov 20.
It also had sought elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court and appointment of Justice Muhammad Anwar Khan Kasi as next chief justice of the IHC.

In his fresh application, Advocate Nadeem had accused the government of deliberately causing obstruction in the adjudication of the petition instead of apologising for having already caused an inexplicable delay in the completion of the constitutional mechanism for induction of the judges into 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 had recommended elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court.

But the President House had 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. The controversy was over the composition of the 11member JC in which Justice Anwar Kasi sat in place of senior judge Justice Riaz Ahmed Khan as he was in Saudi Arabia for Haj when the commission met. The presidential reference has raised 13 questions of public importance.

The reference also mentioned a conclusion of IHC Chief Justice Iqbal Hameedur Rehman who had held Justice Riaz as the senior judge, instead of Justice Kasi, and asked could Justice Kasi be treated as most senior judge of the IHC. It asked whether Justice Riaz had a legitimate expectancy to be appointed as the IHC chief justice in the light of the judgment in the 1996 Al-Jihad Trust case and whether the JC acted in accordance with the Constitution and conventions while recommending a junior judge as the chief justice.

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