ISLAMABAD, Dec 7: Hours after the filing of a reference by President Asif Ali Zardari to seek opinion of the Supreme Court under its advisory jurisdiction on controversy over elevation and appointment of Islamabad High Court judges, the court appointed on Friday a five-judge bench to commence the hearing from Monday.

The bench, which comprises Justice Khilji Arif Hussain, Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed, will also take up, along with the reference, an application filed on Thursday by Advocate Muhammad Akram Sheikh on behalf of petitioner Advocate Nadeem Ahmed seeking an early disposal of the case.

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 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 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 175-A, 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.

The controversy was over the composition of the 11-member 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: whether the president, who is bound by oath of office to preserve, protect and defend the Constitution, is obliged to make appointments which are not in accordance with the Constitution; what should be the manner, mode and criteria before the JC with respect to the nomination of a person as judge of the high court, the Supreme Court and the Federal Shariat Court (FSC) in terms of Article 175-A (8) of the Constitution; what should be the role of the JC and the PC under the Constitution with respect to appointment of judges in the superior judiciary and parameters for the PC to confirm a nominee of the JC; is there any restriction in the Constitution to reconsider the nomination sent by the JC; what should be the criteria for elevating a judge/chief justice of a high court to the Supreme Court; should their seniority as judge of the high court be considered for elevation to the SC or it should be their seniority as chief justice of the respective high court; whether the Constitution prohibits individual members of the JC from proposing the names of judges for appointment to the SC, high court and the FSC; can the PC under Article 175-A confirm or not confirm a nomination in accordance with the provisions and what is the true meaning of the word ‘confirm’; and whether by not providing an in-camera proceeding for the JC under Article 175-A of the Constitution, the intention of the legislature is not to ensure complete transparency and open scrutiny.

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.