SC suspends its order for judges’ tenure extension

The court had earlier directed govt to notify one-year extension for SHC, LHC judges.

The Supreme Court suspended its own order for issuing a notification on a one-year service extension for six additional judges of the Sindh and Lahore High Courts in line with the recommendations made by the judicial commission (JC) until April 11.

The bench turned down government’s plea to change its counsel in a review petition against the verdict given by a four-member bench on March 21. The apex court had set aside the parliamentary committee’s (PC) decision to refuse extension to the six high court judges recommended by the judicial commission. It had directed the government to issue appointment notifications for judges in accordance with the judicial commission’s recommendations.

A larger bench is hearing the review petition filed by Additional Attorney General KK Agha on behalf of the government.

Agha contended that the apex court had rewritten Article 175-A of the Constitution by going beyond its power of interpreting the Constitution in pursuance of the doctrine of judicial review in its March 21 verdict.  The apex court had erred in maintaining that the parliamentary committee was not a part of parliament, stressing on the contrary it was part of parliament that represents the will of the people.

The government submitted that the judgment has amended and rewritten the Constitution by allowing a matter to be taken up before the constitutional process has been completed, rendering the role of the PC virtually redundant in the new judicial appointment process under Article 175-A of the Constitution, thereby prejudicing the contentious 18th Constitutional Amendment still pending before the court.

According to the review petition, the PC was a safety net and it rightly objected to candidates whom it considered, on the basis of reviews by their respective chief justices, unfit for high judicial office. The review petition further contended that if the PC’s decision is subject to a judicial review, as the court has declared, there should be no objection to the action taken by the PC which, if found to be incorrect, can be rectified upon review.

Referring to the objections raised by the chief justices of the respective high courts against the six additional judges, the review petition contended that the JC failed to consider each case on merit when making recommendations. The PC is fully entitled to review all the information before it in breach of their fundamental rights of access to justice.

Agha sought permission from the bench to change the counsel in this review petition which the court rejected because of an objection from counsel for petitioners Makhdum Ali Khan. He also requested the court to suspend its order for issuing notification regarding the extension of six judges in the light of Judicial Commission’s recommendation.

The parliamentary committee had denied extensions to four LHC additional judges, Justice Muhammad Yawar Ali, Justice Syed Mazahar Ali Akbar Naqvi, Justice Mamoon Rashid Sheikh and Justice Muhammad Farrakuh Irfan Khan on February 2, 2011 and two SHC additional judges, Justice Mohammad Tasneem and Justice Salman Hamid on February 22, 2011.

Published in The Express Tribune, April 2^nd,  2011.