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Appointment of judges: Zardari asks SC 13 'questions of law'

08 December, 2012

ISLAMABAD: Filing a reference under Article 186 of the constitution in the Supreme Court, President Asif Ali Zardari has sought the legal opinion on 13 questions of law considered by him to be of public importance in respect of appointment of judges of the Supreme Court and high courts in view of the 18th and 19th constitutional amendments.

Meanwhile, hours after the submission of the reference by the president, the Supreme Court constituted a five-member larger bench, headed by Justice Khilji Arif Hussain and comprising Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sh Azmat Saeed, which will hear the presidential reference and a petition for early hearing of the Islamabad High Court judges' appointment from December 10.

On November 22, a case pertaining to extension in the tenure of two additional judges of the Islamabad High Court had taken a new turn in the Supreme Court after the Attorney General of Pakistan, Irfan Qadir, had informed it (SC) that the government wanted to file a presidential reference over the issue. It is worth mentioning that the government has asked all those questions which are being raised by the Pakistan Bar Council as well as the Supreme Court Bar Association continuously against the Judicial Commission of Pakistan's in-camera proceedings about the appointment of judges.

In view of the superior bars concern regarding the ineffectiveness of the parliamentary committee, the government has also asked a question about the power of parliamentary committee about the appointment of superior courts' judges. Filing the presidential reference, Wasim Sajjad has questioned whether in view of the decision of the chief justice of the IHC, Justice Riaz or Justice Kasi could be treated as the senior-most judge of the IHC.

Some other questions asked by the president are: Whether the Judicial Commission of Pakistan (JCP) acted in accordance with the constitution and convention in recommending a junior judge as chief justice of IHC. Whether the president, who is bound by oath of office to preserve, protect and defend the constitution, is obliged to make the appointments which are not in accordance with the provisions of constitution.

What is the proper role of the JCP and Parliamentary Committee (PC) under the constitution regarding appointment of judges of Supreme Court, high court and Federal Shariat Court. Whether the constitution prohibits reconsideration of the nominations by the JCP and confirmed by the parliamentary committee in the light of the observation made by the president. What should be the criteria for elevating a judge/chief justice of high court to the Supreme Court.

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