President raises 13 questions on judges’ appointment

President Asif Ali Zardari has raised 13 questions of law pertaining to the role of his office in appointment of judges, as he filed a reference in the Supreme Court on Friday under Article 186 of the Constitution. A controversy over the appointment of judges in the Islamabad High Court led the president to file the reference. Through the questions ranging from “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 the constitution” to “what is the proper role of the judicial commission and parliamentary committee under the constitution of Pakistan with respect to appointment of judges of Supreme Court, High Court and Federal Shariat Court”, the president has sought opinion form the apex court in this regard. Chief Justice Iftikhar Muhammad Chaudhry constituted a five-judge bench to hear the presidential reference. Justice Khilji Arif Hussain will head the bench that will hear the case on Monday (December 10). Justices Tariq Parvez, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed are other members of the bench. An earlier bench headed by Justice Khilji had been hearing a petition on the same issue. The Judicial Commission on judges’ appointment had nominated Justice Anwar Khan Kasi as the IHC CJ. However, the president did not give approval of the Judicial Commission and Parliamentary Committee’s recommendations on grounds that Justice Riaz was the most senior judge but, he was not invited to attend the JC’s meeting.
President Zardari has asked in the reference that since Justice Kasi, who was stranger to the JC, attended its meeting, whether or not JC’s composition could be considered valid. Per a Law Ministry notification, Justice Riaz Ahmad, on age basis, is senior than Justice Anwar Khan Kasi, but Justice Kasi was treated as the most senior judge of IHC and his name was recommended for the IHC chief justice.
The four-judge bench headed by Justice Khilji Arif Hussain had earlier held that as “most senior” judge Justice Riaz Ahmad was in Saudi Arabia for Haj during JC’s meeting, the composition of JC could not be termed invalid. But president insisted on filing the reference. The presidential reference filed by Wasim Sajjad contained 13 law points and questioned the very constitution of the Judicial Commission in which Justice Anwar Khan Kasi attended the JC’s meeting on October 22 instead of Justice Riaz.
The following questions have been put up:
i. Whether in view of the decision by the chief justice of the IHC that Justice Riaz was the senior most judge of the IHC, a decision which was also confirmed by the president of Pakistan, Justice Kasi could be treated as most senior Judge of the IHC?
ii. Whether Justice Riaz had a legitimate expectancy to be appointed as chief justice of the IHC on the ground that he was the most senior judge of that court in the light of the judgment I of the Supreme Court in the Al-Jehad case referred to above?
iii. Whether the JCP acted in accordance with the constitution and conventions thereof in recommending a junior judge as chief justice of the IHC?
iv. Whether JCP was properly constituted as per provision of Article 175-A of the constitution as Mr Justice Kasi who participated in the meeting was not a member thereof and was a stranger to the proceedings?
v. 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 the constitution?
vi. What should be the manner, mode and criteria before the Judicial Commission with respect to the nomination of a person as a judge of high court, Supreme Court and Federal Shariat Court in terms of Clause (8) of Article 175-A of the Constitution of Islamic Republic of Pakistan, 1973?
vii. What is the proper role of the Judicial Commission and Parliamentary Committee under the constitution of Pakistan with respect to appointment of judges of Supreme Court, High Court and Federal Shariat Court?
viii. What should be the parameters before the Parliamentary Committee for the confirmation of the nominee of the Judicial Commission in terms of Clause (12) of Article 175-A?
ix. Whether the constitution prohibits reconsideration of the nominations by JCP and confirmed by the Parliamentary Committee in the light of the observations made by the president?
x. What should be the criteria for elevating a judge/chief justice of the high court to the Supreme Court? Is it their seniority inter-se as judge of the high court or their seniority inter-se as chief justice of respective high court be the consideration for elevation to the Supreme Court?
xi. Whether the constitution of Pakistan prohibits individual members of the JCP to initiate names for appointments of judges to the Supreme Court, the high courts and the Federal Shariai Court?
xii. The Parliamentary Committee under Article 175-A of the Constitution may confirm or may not confirm a nomination in accordance with the provisions stated therein. What is the true meaning of the word “confirm” and what is the effect of the proviso to Clause 12 of Article 175-A which reads as follows: “Provided further that if nomination is not confirmed, the commission shall send another nomination.”
xiii. Whether by not providing in camera proceeding to JCP per Article 175-A of Constitution of Pakistan, the intention of the legislature is to ensure complete transparency and open scrutiny?
On November 19, the Supreme Court had sent a letter to the Prime Minister’s Office, informing that the president and prime minister had no power and authority to differ with the decision of the parliamentary committee under the new constitutional dispensation. That letter was sent a day before expiry of IHC two judges’ service tenures.
While citing judgments, the letter held that the role which they [president and prime minister] were performing in the previous legal setup [president made the appointments on the advice of the prime minister] was now logically to be performed by the parliamentary committee, adding that both had been now left with nominal roles and their powers, in the words of the chairman of the constitutional body, “have been taken away”.
The letter had also asked for issuance of notification of extension of six months in the service tenure of Justice Noorul Haq Qureshi as additional judge and confirmation of Justice Shaukat Aziz Siddiqui as judge of IHC under Article 175A.