ISLAMABAD: Hearing the Presidential Reference and a petition on the appointment of Islamabad High Court (IHC) judges, the Supreme Court has said that ‘there is no need for academic exercise’ and the issue will be decided on seniority basis.
A five-member larger bench hearing the case on Monday also turned down the federation’s counsel’s request for a larger bench minus JCP-member judges, saying it was the prerogative of the chief justice to constitute a bench, and they (the existing bench) “are sitting as Supreme Court”.The court nominated Makhdoom Ali Khan and Khawaja Haris as Amicus Curiae in the Presidential Reference, which has been filed under article 186 to seek apex court’s advice on the appointment of judges in superior judiciary. The court also said that in the next hearing they would decide if Attorney General Irfan Qadir being the member of the Judicial Commission of Pakistan (JCP) could appear in this case.
Before adjourning the case until December 12, The bench directed JCP to provide the minutes of the Sept 27 and Oct 22 meeting of the judicial commission, while the IHC Registrar has been ordered to provide the notification of appointment of Justice Muhammad Anwar Khan Kasi and Justice Riaz Ahmed Khan as judges of IHC.Earlier during Monday’s hearing, counsel for federation Waseem Sajjad said that the chief justice should consider forming a larger bench minus those judges who are the members of JCP. He said the propriety demands that the larger should hear the case.
Justice Khilji Arif Hussain, heading the bench, said this was the prerogative of the chief justice to constitute a bench, adding, “We are sitting as Supreme Court.” Justice Ejaz Afzal said that “the chief justice has already passed an order conscious of the fact. You may make a separate application regarding the matter”. Justice Khilji said, “Let’s see is this an issue of public importance.”Waseem Sajjad read the questions, raised in the Presidential Reference. Justice Khilji said the constitution itself provides the answer to these questions.
But the learned counsel contended that the JCP rules were not specific that was why the Presidential Reference had been filed.Justice Gulzar Ahmed said that “these questions can be raised in the petition and you wanted that this petition become infractuous. Why not the petition (should) be decided first… Can’t both be amalgamated?” The federation’s counsel said the petition does not relate to the seniority issue of Justice Anwar Kasi. He said the questions have arisen because of some grey area.Justice Gulzar said “let the petition be decided on judicial side”.
He said “there is no need for academic exercise”. The learned counsel said that ultimately “your decision would prevail”. Justice Tariq Pervaiz said that seniority issue should be decided on the basis of age, adding this issue has been decided by Justice (r) Irshad Hassan when he was the law secretary. This is not been challenged yet, he added.Akram Sheikh, the counsel for petitioner Nadeem Ahmed advocate, argued: “Here is the ploy to frustrate the attempt of judges’ appointment.” It has deprived the people of their fundamental rights of access to justice as the IHC has virtually be closed. He requested that his client’s petition should be heard first.Justice Ejaz Afzal said the questions raised in the reference and the petitions are inextricably linked therefore the propriety demands both be heard together. – Nation
