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Presidential reference: SC refuses to set up larger bench

11 December, 2012

ISLAMABAD: The Supreme Court on Monday turned down the request of the president's counsel for formation of a larger bench for hearing of the case regarding president's role in appointment of judges of the superior judiciary.

Wasim Sajjad had requested for sending a recommendation to the chief justice of Pakistan for formation of a larger bench since the issue involved serious constitutional questions.

The court on Monday appointed two amici curiae to assist it in the case, which arose from the pending matter related to the Islamabad High Court judges. A five-judge bench comprising Justice Khilji Arif Hussain, Justice Tariq Pervaiz, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sh Azmat Saeed, took up the presidential reference moved under Article 186 of the constitution, invoking its advisory jurisdiction.

The bench nominated former attorney general of Pakistan Makhdoom Ali Khan and former advocate general of Punjab Khawaja Haris as amici curiae in the case. About issuance of notice to the attorney general of Pakistan, the bench in its order observed that the question whether he could appear in the instant matter while being a member of the judicial commission would be determined on the next hearing.

It also asked the secretary of the judicial commission to submit minutes of the two meetings over the appointment of IHC judges and also directed the Islamabad High Court registrar to submit the notification regarding appointment of additional judges Justice Riaz Ahmed Khan and Justice Anwar Kasi.

During the course of the hearing, Wasim Sajjad said that the president had moved the reference seeking the court's guidance over the significance of the constitutional issue. He said the judicial commission comprised five senior judges of the court and this bench had to examine their decision.

Justice Khilji Arif Hussain observed that it involved propriety issue of the chief justice of Pakistan. He told the counsel that his apprehension was unfounded as the judicial commission had taken the decision on administrative side and they would have to adjudicate upon the issue on judicial side.

Justice Gulzar Ahmed suggested that a petition over the issue of appointment of IHC judges was pending which would be dealt on the judicial side, and if he desired, his questions could be raised before that very bench. He also questioned whether in the pendency of the same issue, another identical case could be heard, to which Wasim Sajjad replied that it was decided during 1987 that both cases of identical nature could be taken up.

He maintained that the president was not a party in that instant case, while the question of seniority was not raised in that case. He said the president sought opinion of the court provided under the procedure and it was not mere academic rather involved constitutional issues. Further hearing was adjourned until December 12.


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