ISLAMABAD, Dec 12: The seniority question of two Islamabad High Court (IHC) judges appears to be still bothering the Supreme Court judges who took up the presidential reference on Wednesday.
“You have framed many questions in the reference, but the only question which requires answer from this court is the seniority issue,” Justice Ejaz Afzal Khan, one of the members of a five-judge bench, observed. “The question of seniority is agitating our minds,” he said.
The bench is seized with the reference sent by the president seeking an opinion of the court under its advisory jurisdiction on controversy over elevation and appointment of the IHC judges.
The entire controversy boils down to the seniority of Justice Riaz Ahmed Khan and Justice Muhammad Anwar Khan Kasi of the IHC. The issue became contentious because of the presence of Justice Kasi in meetings of the Judicial Commission (JC) in place of Justice Riaz who, being a senior judge, was supposed to attend the sessions, as determined by the IHC chief justice.
The JC had recommended six months’ extension for Justice Noorul Haq N Qureshi and permanent appointment of Shaukat Aziz Siddiqui in the IHC. It also recommended elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court and appointment of Justice Muhammad Anwar Khan Kasi as new chief justice of the high court.
The recommendations were approved by the Parliamentary Committee (PC) set up under Article 175A inserted in the Constitution under the 18th and 19th Amendments.
But the presidency 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.
On Wednesday, Waseem Sajjad, representing the referring authority (the president), completed his arguments on five of the 13 questions raised in the reference. He will advance arguments on the remaining questions at the next hearing on Thursday.
If he concludes early, two amici curiae — Makhdoom Ali Khan and Khawaja Haris — will be asked to assist the court and complete their suggestions within the day so that the court may come up with some conclusions in view of the fact that things at the IHC are at standstill.
The court turned down a request by Waseem Sajjad to get assistance from Attorney General Irfan Qadir, advocates general of the four provinces, vice-chairman of the Pakistan Bar Council (PBC) and president of the Supreme Court Bar Association (SCBA).
Justice Khilji Arif Hussain, who heads the bench, observed that there was no need at the moment and, if needed, the court would definitely summon them. Advocate Sajjad recalled that the court had summoned the advocate generals and heads of the bar council and association in the Bhutto reference case.
He said because of the seniority issue the situation had attained significance as president’s endorsement of whatever recommendation sent by the JC would create consternation among judges.
The counsel said the reference had kept in view independence of the judiciary and that was why the president would act in accordance with whatever guidelines were given by the court.
INTERPRETING PRESIDENT’S ROLE: He said there was a need to interpret the president’s role in the appointment of judges in the superior judiciary after the 19th Amendment. “We are here before the court with the reference in view of a grey area (that) emerged after sending of the JC recommendations back to the prime minister by the president for reconsideration.”
Justice Khilji reminded the counsel that the apex court had held in the 2011 Munir Hussain Bhatti case that both the president and the prime minister had mere ministerial and administrative roles in the matter of appointment of judges. Had the legislators intended to assign some role to the president and the prime minister, they could have provided so instead of giving such powers to the PC.
The counsel and said Justice Jawwad S. Khawaja, the author of the verdict in the Munir Bhatti case, had himself discussed the role of the president when the case entirely related to the role of the PC.
Muhammad Akram Sheikh, the counsel for petitioner Advocate Nadeem Ahmed, requested the court to summon the speech made by Senator Raza Rabbani in parliament before the passage of the 18th Amendment and the concise statement submitted by the federal government on a petition against the 18th Amendment.
He argued that the apex court had been persuaded to grant a role to the PC in the appointment of judges in an interim order which could be withdrawn any time leaving “us to revert again to the old system of appointment of judges”. Both the president and the prime minister had conferred their discretion to the PC, he said.