ISLAMABAD - The Supreme Court Friday adjourned for a fortnight the hearing on the case about the composition of the Judicial Commission and seniority of Islamabad High Court judges, after federation’s representative said the president has decided to file a reference in the case.Justice Khilji Arif Hussain was heading a four-member bench hearing petitions about making Shaukhat Siddiqui a permanent judge, extending the tenure of Justice Noorul Haq for six months and elevation of Justice Hameed-ur-Rehman to the post of IHC chief justice.The bench on November 22 had directed Attorney General Irfan Qadir to obtain president’s views about the legality of the Judicial Commission in a scenario wherein “the most senior judge was not available and most senior available judge sat on the commission.”The bench had also told the attorney general to convey to the president to issue the withheld notification (for reappointment of judges) or else the court will do it. The apex court on Thursday also declared that the composition of the judicial commission was in fact legal and could not be questioned by the president’s office to quash their service tenure extensions.On Friday, Attorney General Irfan Qadir submitted the federation’s written reply regarding the matter, stating that he could not reach President Asif Ali Zardari due to president’s engagement in D-8 summit on Thursday, but he did meet Law Minister Farook H Naek.The AG said that the law minister told him that President Zardari wished to submit a reference under article 186 of the constitution, as the formation of the judicial commission was not in accordance with the constitution. He added that in his reference, President Zardari would seek judicial guidance and he would like to know more about the role he could play in this case so that the issue could be settled in a transparent manner.Justice Asif Saeed Khosa remarked that according to article 186, the bench can only advise the president in regard to the reference. However, considering something as unconstitutional and not abiding by it was a dangerous trend, he added. He also said that the court would also solicit views of all the advocate generals in the matter, as that was a constitutional way to seek the court advice on the matter.Akram Sheikh, counsel for Nadeem Ahmed, argued that the court could decide the matter even though the reference is filed. Justice Khosa asked him you leave to the court what it has to decide. Sheikh pleaded that in the presence of his petition, filing of reference by the President was not a good idea. “This has come in bad faith,” he said. Justice Khilji remarked, “Don’t use such words for the President of Pakistan”. The counsel responded; “You can’t use it but I can.”The attorney general said that the President has shown lot of faith in the court. He said that the instant petition has now become infructuous in view of the fact that both of them, Justice Shaukat Aziz Siddiqui and Justice Noorul Haq Qureshi, have ceased to be judges upon expiry of their tenure on November 20, 2012.Akram Sheikh said that unless there was a final decision about the petition, the IHC judges should be given interim authorisation to work. The AG requested the court to adjourn the petition for two weeks for filing of the reference. The court adjourned the hearing, saying that if the reference would not be filed in two weeks then they would resume hearing of the application.The president’s office has continued to ignore recommendations put forth by the judicial commission and the Parliamentary Committee on the Appointment of Judges. The two judges of the IHC, Justice Shaukat Aziz Siddiqui and Justice Noorul Haq Qureshi, who were on the bench of case pertaining to the validity of army chief Gen Ashfaq Parvez Kayani’s extension, currently stand officially retired. On completion of their one year tenures as additional judges, both of them retired on November 20.Earlier, during a previous hearing, while defending the president’s office for not issuing notifications as recommended by the commission and the parliamentary committee, the AG had objected to the composition of the judicial commission saying that the approval of these judges was illegal since the senior most judge of the IHC was not present during the meeting.But on Thursday, after hours-long deliberations on the constitutional issues of the reappointment of Justice Siddiqui and Justice Qureshi, the apex court found that the law ministry’s notified ‘most senior’ judge of the IHC Justice Riaz Ahmad Khan was abroad for Haj when the judicial commission held its meeting on October 22 to finalise its recommendations, and, therefore, the recommendations were not illegal and could not be challenged.The court stated that Justice Anwar Khan Kasi attended the judicial commission meeting as per the legal procedure in place of Justice Riaz. During the hearing, IHC’s registrar confirmed that Justice Riaz had left Pakistan for Saudi Arabia on October 5 to perform Haj and came back on October 29. Also on Thursday, the bench asked the AG to inform the president about the latest proceedings, so he could issue the withheld notifications. In case of failure, the court warned, it would pass the order itself.“Since we are not hearing the controversy related to the seniority of the judges, so it is good to resolve this issue amicably,” Justice Khosa told the federation’s lawyer. AG Qadir, who was not present in the court in the morning session and was summoned to attend the proceedings, told the court that, due to the D-8 conference, President Asif Ali Zardari was very busy and the court should adjourn the case till Monday.Justice Khilji told AG Qadir: “Due to the non-issuance of the notifications, the IHC is not functioning properly and litigants are suffering. Therefore, instead of seeking long adjournments, convey to the president to issue the notifications of the two judges’ reappointment otherwise we will pass an order in this case.”Qadir asked the bench how the petitioner’s counsel came to know the details regarding the in-camera proceedings of the judicial commission. “It means he was taught by someone regarding this issue,” the AG claimed. Akram Sheikh replied: “I was informed by the Leader of Opposition in the Senate about the internal proceedings.” According to Sheikh, out of the 11 members of the commission, one was absent, two members had raised objection, while eight members backed the recommendations during its October 22 meeting.

Published in The Nation newspaper on 24-Nov-2012