The president’s reference regarding the Islamabad High Court (IHC) judges’ appointment and elevation was filed in the Supreme Court by the Law Ministry on Friday.
The reference was filed to obtain advice of the Supreme Court under Article 186 of the Constitution, inter alia, with regard to the appointment of chief justice of the IHC as well as confirmation of the additional judges of the IHC.
The reference has been prepared by Wasim Sajjad and signed by President Asif Ali Zardari.
The 31-page reference raised 13 questions that were related to the role of Judicial Commission and a bipartisan parliamentary committee in the appointment of judges. At least 19-page documents have also been submitted along with the reference filed by the Law Secretary.
The reference questions whether the constitution prohibits individual members of the JC to initiate the names of judges for appointment to the superior courts, questioning the legality of the composition of the 11-member JC in which Justice Muhammad Anwar Khan Kasi sat in place of senior judge Justice Riaz Ahmed Khan who was in Saudi Arabia for Haj when the commission met.
The reference further inquires about the legality of the decisions made by a commission, which was wrongfully constituted.
Another question asked is whether the president, who has taken oath to protect, preserve and defend the Constitution, is obliged to make an appointment which, in his view, is not in accordance with the Constitution.
It should be mentioned here that this presidential reference has been prepared about a conflict over appointment of judges in IHC, added the sources.
The reference states that it is the Constitution of Pakistan that entitles the president with a role in appointments of judges, as the link between the judicial commission, the parliamentary committee and the president has been clarified in the 18th Amendment.
According to the draft of the reference, Justice Anwar Kasi was appointed as the Chief Justice of IHC in place of Justice Riaz Ahmed Khan on September 27 and the Chief Justice of Pakistan (CJP) nominated him due to his seniority.
But, the law minister pinpointed that the issue relating the seniority of the two judges is pending before the Law Ministry. Meantime, Attorney General and the Pakistan Bar Council (PBC) representative Khalid Ranjha also called in question the seniority of the two judges.
On November 22, a case pertaining to extension in the tenure of two additional judges of the Islamabad High Court had taken a new turn before the Supreme Court after the Attorney General of Pakistan Irfan Qadir had informed it (SC) that the government wanted to file a presidential reference over the issue.
Questioning the composition of judicial commission on the judges' appointments, he had sought two-week time from the Supreme Court for filing the presidential reference, citing the need for seeking legal opinion on all issues related to appointments of the IHC judges.
On October 22, the Judicial Commission of Pakistan had recommended the permanent appointment of IHC's additional judge Shaukat Aziz Siddiqui and a six-month extension in the tenure of IHC's additional judge Noorul Haq N Qureshi.
On November 6, the parliamentary committee for appointment of superior courts judges had also endorsed the recommendations of the Judicial Commission. The Law Ministry, however, had not issued a notification for extension in the tenure of these two judges and the matter was still pending before the Supreme Court for adjudication.