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After resolving the Swiss letter issue, Law Minister Farooq H. Naek is working now on questions relating to the appointment of superior courts judges which the government intends to put before the Supreme Court in the form of a presidential reference.

Mr Naek met Prime Minister Raja Pervez Ashraf on Monday and discussed with him the questions to be included in the reference to seek the apex court’s opinion.

The prime minister gave a go-ahead to Mr Naek to file the reference, says a press release issued by the prime minister’s secretariat.

The reference, it said, was being prepared under Article 186 of the Constitution to settle these issues forever in a transparent manner.

On Friday, the SC had given two weeks to the government to file the reference.

Sources privy to the meeting told Dawn that the government would raise a number of questions. In a nutshell, they said, the government would challenge the entire process of appointment of superior court judges.

A senior government adviser who is in the legal team working on the reference, told Dawn: “We have decided to raise a whole range of issues through the reference starting from judges’ seniority, powers of the judicial commission vis-à-vis the parliamentary committee, and the role of the president.”

On the face of it, he said, the role of the judicial commission was to make a nomination for the appointment of a judge, which went to the parliamentary committee for confirmation and in the end the president made the appointment.

But actually it was the judicial commission headed by the Chief Justice which prevailed in the end because neither the parliamentary committee nor the president could reject its nomination. The parliamentary committee at best could refuse confirmation of a judge with a three-fourths majority vote, but for that it was supposed to record reasons which again was up to the judicial commission to accept or reject them, the adviser said.

The SC will be asked if the judicial commission and the parliamentary committee could be accorded equal powers in the appointment of judges.

At the moment, he said, proceedings of the parliamentary committee on the appointment of judges were held in camera, which the government believed should be open to media to bring more transparency in the process of their (judges) appointments. A question would be raised on this matter as well because the appointment of judges was an issue of public importance, the adviser argued.

Above all, he said, at the moment there was no definite role in the appointment of a judge for the president who was the eventual appointing authority. The president only has to make a formal announcement. The SC will also be asked to explain in definite terms what role the president should play in the appointment of a judge.

The government has decided to file the reference in response to a petition which has challenged President Asif Ali Zardari’s refusal to sign notifications for the appointment of two judges of the Islamabad High Court.

The bench comprising Justice Khilji Arif Hussain, Justice Asif Saeed Khan Khosa, Justice Ijaz Ahmed Chaudhry and Justice Ejaz Afzal Khan is hearing the petition filed by Advocate Nadeem Ahmed seeking issuance of a notification for six months’ extension of Justice Noorul Haq N. Qureshi and permanent appointment of Justice Shaukat Aziz Siddiqui in the IHC.

The two judges were nominated by the judicial commission and approved by the parliamentary committee.

The presidency returned the recommendations to the judicial commission with observations to reconsider the nominations since the commission was not constituted properly. Consequently, the judicial term of the two judges expired when they completed their tenure on Nov 20.

The controversy is about the composition of the 11-member judicial commission on which Justice Mohammad Anwar Khan Kasi sat in the absence of Justice Riaz Ahmed Khan who had gone to Saudi Arabia to perform Haj. Being a senior judge of the high court, Justice Riaz Ahmed Khan was supposed to attend the meeting.

The tiff between the judiciary and the executive on the appointment of superior court judges is not new. In February last year, the parliamentary committee declined to accept the recommendation of the judicial commission to further extend the tenure of four senior additional judges of the Lahore High Court and two of the Sindh High Court.

Consequently, two separate petitions were filed before the Supreme Court. On March 21 last year, the apex court rejected the objections raised by the parliamentary committee and ruled that it had overstepped the rightful jurisdiction of the judicial commission while ignoring its constitutional boundaries. Since then the parliamentary committee hasn’t questioned any of the judicial commission’s recommendations.

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