Judges' appointment: SC directs AGP to discuss issue with president
23 November, 2012
ISLAMABAD: The Supreme Court on Thursday directed the attorney general of Pakistan to discuss the Islamabad High Court judges' appointment issue with the president and submit his response today (Friday).
A four-judge bench headed by Justice Khilji Arif Hussain hearing the confirmation and extension of two IHC judges asked AGP Irfan Qadir that due to non-functioning of the IHC, litigants are suffering and therefore instead of seeking long adjournment, he should ask the president to issue notifications for reappointment of the two judges, otherwise the court would issue an order in this case.
During the hearing, a large number of pro-judiciary lawyers witnessed the proceedings seeking continuation of two IHC judges. The Rawalpindi bar boycotted the court's proceedings.
Akram Sheikh, counsel for petitioner, said the Judicial Commission of Pakistan (JCP) on October 22 recommended the names of Justice Shaukat Aziz Siddiqui and Justice Noorul Haq Qureshi for confirmation and six-month extension, respectively with 8-2 votes, while one member was absent on the date. The parliamentary committee approved their names on November 5 unanimously.
Quoting Section 13 of Article 175A, he pleaded that the approval of the parliamentary committee does not leave any room for discretionary powers either of the prime minister or the president in the appointment of the judges to the superior court.
Article 175A(13) says, "The committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the prime minister who shall forward the same to the president for appointment."
Justice Asif Saeed Khosa raised four questions – whether the judicial commission was validly constituted in accordance with the constitution, what could be the impact if the commission was not constituted validly but approved the judges' names with majority, after the process is over and matured in nomination, could the president stop the appointment, is there any way outside the constitution?
Replying to the questions, Akram Sheikh argued on October 22 the JCP was validly constituted according to the constitution. Raising the seniority issue, the attorney general contended that instead of Justice Riaz Ahmed Khan, the most senior judge of the IHC, Justice Muhammad Anwar Khan Kasi attended the JCP meeting as the most senior judge of the court at that moment.
Justice Khilji inquired from the petitioner whether Justice Kasi according to the IHC cause list of the day was the most senior judge of the high court. The incumbent and the former presidents of the IHCBA told the bench Justice Kasi was the senior most judge of the IHC that day. They also informed the bench that Justice Riaz was not in the country as he was performing Hajj at that time. The bench directed the office to confirm from the Islamabad High Court registrar.
The IHC registrar dispatched a note confirming that Justice Riaz performed Hajj on those days. Upon this, Justice Khilji told the attorney general to bring this fact in the president's notice and get his response today as the IHC's functioning is being adversely affected due to delay in the issuing of the notification.
At the outset of the hearing, the court noticed the absence of the attorney general and summoned him after the interval. The attorney general after the break appearing before the bench said, "It was a local holiday. But when I saw on the TV that I am summoned in IHC judges' case I immediately came to the court."
The attorney general said the president sent back the judges' appointment with the objection of seniority representation by the IHC. He prayed to the court to adjourn the case until Monday. The court dismissing his request asked him to discuss the issue with the president and submit his response today.