ISLAMABAD: The Supreme Court on Wednesday began hearing a reference sent to it by President Asif Ali Zardari seeking a court advice to resolve a controversy over the elevation and appointment of Islamabad High Court judges, DawnNews reported. A five-judge bench of the apex court, comprising Justice Khilji Arif Hussain, Justice Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed, was hearing the presidential reference.

During the hearing, Advocate Waseem Sajjad, representing the referring authority (the President), began his arguments before the bench.

Sajjad moreover requested the bench to summon the advocate generals of the provinces and the presidents of the Pakistan Bar Council and the Supreme Court Bar Association to assist the court.

Responding to which, Justice Hussain said presently there was no need to summon the AGs and the heads of the bar councils, adding that, the court would seek their services if there was a need.

On which, Sajjad said the court had summoned the advocate generals and the bar councils' heads in the Bhutto reference case and therefore they should also be summoned in this case.

Also during the hearing, Sajjad said the chief justice of the IHC had declared Justice Riaz Ahmed Khan, a member of the Judicial Commission (JC), as a senior judge.

Responding to which, Justice Hussain said at the time of the commission's meeting, Justice Khan was abroad.

Sajjad said no other judge could be summoned to fill the seat of a senior judge in case of his or her absence.

He added that Justice Muhammad Anwar Khan Kasi was not entitled to attend the meeting in lieu of Justice Khan.

The controversy

The controversy was over the composition of the 11-member Judicial Commission (JC) in which Justice Kasi, one of the judges whose nomination had been finalised by the JC as the IHC’s next chief justice, himself sat in place of senior judge Justice Khan who was in Saudi Arabia for Haj when the commission had met at the time.

The two judges — Justice Iqbal Hameedur Rehman and Justice Kasi — were nominated by the 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, had also recommended elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court.

But the President House had 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 reference

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 Justice 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.