SC rejects plea for formation of larger bench

Admitting the presidential reference on judges’ appointments for regular hearing, the Supreme Court on Monday rejected a plea by the federation for sending a recommendation to the chief justice of Pakistan for formation of a larger bench to hear the case, with the bench observing that the issue involved serious constitutional questions.
A five-judge bench of Justice Khilji Arif Hussain, Justice Tariq Pervaiz, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed also appointed two amicus curiae for assisting it to determine the role of the president in appointment of judges of the superior judiciary, arising out of a pending matter related to Islamabad High Court judges. Earlier, the bench took up the presidential reference moved under Article 186 invoking its advisory jurisdiction. After initial discussion, the bench nominated Makhdoom Ali Khan, former attorney general for Pakistan and Khawaja Haris, former Punjab advocate general, as amicus curiae in the case.
The bench was constituted to take up a 31-page reference containing 13 questions related to the role of the president, as well as the Judicial Commission and Parliamentary Committee on judges’ appointment in the appointment of judges to the superior judiciary. The bench also asked the secretary of the judicial commission to submit minutes of the two meetings held over the appointment of IHC judges and directed the Islamabad High Court registrar to submit notification regarding appointment of additional judges, Justice Riaz Ahmed Khan and Justice Anwar Kasi.
About issuance of notice to the attorney general for 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 next date of hearing. The bench, however, did not agree to a request by Wasim Sajjad, the counsel for the referring authority, for sending a recommendation to the chief justice of Pakistan for formation of a larger bench since the issue involved serious constitutional questions. During the course of hearing, Wasim Sajjad said the president had moved the reference seeking the court’s guidance over the significant 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 basis 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 and would be dealt with on judicial side and if he desired, his questions could be raised before that bench.
He also questioned if another identical case could be heard when a case of same issue was pending. Wasim replied that it was decided in 1987 that both cases of identical nature could be taken up.
Sajjad said 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 matter and rather it involved constitutional issues. He said they wanted the judiciary independent and stronger and its decisions would be followed by the government. Justice Tariq Pervaiz observed that the seniority of judges was decided on the basis of age as contained in 1987 case.
Akram Shaikh, counsel for a petitioner in the IHC judges’ appointment case, said that due to non-appointment of judges, the residents of Islamabad had been facing problems. Justice Ejaz Afzal Khan said propriety demanded that these questions raised in the reference were intrinsically interlinked with the pending issue so these could be decided together while regarding pending cases in the IHC and they could observe that these should be decided expeditiously. Justice Tariq Pervaiz told Akram Shaikh that the reference was seeking guidance for future.
Responding to a remark of the counsel, Justice Khilji Arif Hussain observed that they realised the seriousness of the matter. He said he and Justice Tariq Pervaiz was part of Muneer Hussain Bhatti’s case but now the president had sent them a reference and they would have to respond. The proceedings have been adjourned until December 12.