President pre-empts end to his role in appointment of judges

ISLAMABAD: Sensing that the Supreme Court will set aside his finding on the issue of seniority of superior court judges and his supposed role in their appointment, President Asif Ali Zardari has decided to seek the SC’s authoritative opinion invoking its advisory jurisdiction.

The president will file a reference under Article 186, which says if, at any time, the president considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he will refer the question to it for consideration. The court will consider it and report its opinion to the president.

“It is up to Chief Justice Iftikhar Muhammad Chaudhry to have a full court or form a larger bench to deal with the presidential reference,” Attorney General Irfan Qadir told The News when contacted.

He said that there were many instances when different presidents filed such references with the apex court to get its opinion under Article 186. “It is the prerogative of the president.”The attorney general said that hopefully the reference would be filed within a fortnight, the time given by a four-member bench headed by Justice Khilji Arif Hussain on Friday.

He said different questions would be raised in the reference relating to the president’s role in the appointment of judges and the issue of deciding their seniority. The president wants to have a considerable say in the appointment of judges and in determining their seniority.

Legal experts say Zardari has chosen the prudent way to get the opinion of the apex court instead of imposing his own view on the question of seniority of two judges of the Islamabad High Court (IHC).

They believe that if Zardari had insisted on sticking to his stand, a confrontation was bound to take place. Finally, the Supreme Court was going to decide the question and such a ruling would have been binding on the government.

On October 22, the chief justice-led Judicial Commission recommended confirmation of IHC judge Shaukat Aziz Siddiqui and six-month extension of the term of additional justice Noorul Haq N Qureshi. The government’s main objection is that under the Constitution, the JC meeting that took this decision should have been attended by the senior-most judge Justice Riaz Ahmed and not Justice Mohammad Anwar Kasi.

As the president did not issue the desired notification in the light of this recommendation, both the judges went home two days back on the expiry of their initial one-year tenure.

Federal Law Minister Farooq H Naek had not attended the October 22 JC meeting while the attorney general and the Pakistan Bar Council’s representative Dr Khalid Ranjha had objected to the consideration of confirmation of the three IHC judges by the JC.

However, later the eight-member bipartisan parliamentary committee (PC) had also approved the JC recommendation and the prime minister had forwarded the same to the president for notification. But President Zardari did not notify these changes, questioning the composition of the JC. He held the view that constitution of the JC was not valid because when it considered these changes, the senior-most IHC judge had not attended its deliberations.

Experts say Article 175A doesn’t envisage any role for the president except notifying the appointments as recommended by the JC and PC. They say that the recommendation of these two forums reflects the wisdom and findings of the superior court judges and parliament. They say the government’s objection to the recommendation of the JC and PC was of a technical and procedural nature.

The JC ruled that Justice Kasi was the senior-most judge of the IHC and therefore it recommended his appointment as the IHC chief justice in place of Justice Iqbal Hameedur Rehman, who was elevated to the Supreme Court.

Similarly, the experts say, the JC thought it proper to confirm Justice Siddiqui and extend the tenure of Justice Noorul Haq N. Qureshi.

Under Article 175A, the eight-member PC on receipt of a nomination from the JC may confirm the nominee by majority of its total membership within 14 days, failing which the nomination will be deemed to have been confirmed. The PC, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the given period. If a nomination is not confirmed by the PC, it will forward its decision with reasons so recorded to the JC through the prime minister. If a nomination is not confirmed, the JC will send another nomination.

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