A five-judge larger bench headed by Justice Khilji Arif Hussain and comprising Justice Tariq Parvez Khan, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed heard the reference. On October 22, the JCP had recommended the permanent appointment of Islamabad High Court (IHC) 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 Judges had also endorsed the recommendations of the Judicial Commission.
However, the Law Ministry did not issue a notification in relation to extension in the tenure of these two judges as President Asif Ali Zardari did not grant approval to the nominations on grounds that it was not valid because the 'most senior' judge of the IHC Justice Riaz Ahmad was not invited to attend the Commission's meeting on October 22.
The apex court has constituted a five-member larger bench to hear the presidential reference and a constitution petition filed by Nadeem Ahmed. The petitioner has challenged the delay in the appointment of judges in the IHC. During the course of proceedings, the bench also appointed former Attorney General for Pakistan Makhdoom Ali Khan and former Advocate General Punjab Khawaja Haris as amici curiae in the matter.
The bench issued directives to the secretary JCP to submit minutes of its meeting on the appointment of judges whereas Registrar Islamabad High Court was also directed to provide the notification of appointment of Justice Anwar Kasi and Justice Riaz in IHC.
The bench observed that during the next hearing of the reference, it would be decided whether Attorney General for Pakistan Irfan Qadir, being a member of the JCP, could appear in the instant matter. During the course of hearing, Waseem Sajjad, the Federation's counsel, submitted that the Chief Justice should consider forming a larger bench minus those judges who are members of JCP to hear the case. Justice Khilji Arif Hussain responded that it is the prerogative of the Chief Justice to constitute the bench and Justice Ejaz Afzal observed that Sajjad may file a separate application over the matter for another larger bench.
Sajjad read out the questions raised in the Presidential Reference. To which, Justice Khilji observed that the Constitution itself provides the answer to the questions raised in the reference. Sajjad pleaded that rules are not specific; that is why the Presidential Reference has been filed to seek an answer so that the President is guided in the form of an opinion in the performance of his function.
Justice Tariq Parvez remarked that seniority issue should be decided on the basis of age, and observed that the issue was decided by former Justice Irshad Hassan when he was the law secretary - a decision which has not been challenged yet. Akram Sheikh, the counsel for petitioner Nadeem Ahmed, argued "here is a ploy to frustrate judges' appointments. It has deprived the people of their fundamental rights of access to justice and IHC is virtually closed." He prayed the bench to hear his client's petition first. Justice Ejaz Afzal said the questions raised in the reference and the petitions are inextricably linked; therefore propriety demands both cases be heard together. The hearing was adjourned till December 12.