IHC seeks govt, law ministry reports on long-pending judges' appointment summary
The Islamabad High Court (IHC) on Monday sought written reports from the federal government and the Ministry of Law by Tuesday (tomorrow) on the status of a long-pending summary for the appointment of high court judges, expressing strong displeasure over the delay.
The petition, filed before the IHC on August 5, challenged President Asif Ali Zardari's continued failure to approve the summary forwarded by the prime minister following the Judicial Commission of Pakistan's recommendations for appointments to the Islamabad, Lahore, Sindh and Balochistan high courts. At the previous hearing on August 7, the IHC had held off on deciding the petition, indicating that it first wanted the federal government to clarify the status of the judges' appointment summary and present its position. The court had also questioned whether a writ could be issued against the president over the matter.
Justice Arbab Muhammad Tahir, who heard the case today, questioned the government's handling of the summary and asked the Additional Attorney General (AAG) Rashid Hafeez, “What is the federal government doing? Are you not interested?”
The court directed the deputy attorney general to ensure that the federal government and the law ministry submitted brief reports detailing when the prime minister had sent the summary to the president and whether any action had been taken on it thereafter.
Read: Govt should explain status of judges' appointment summary before maintainability decided: IHC
Justice Tahir said it appeared that the federal government had shown less interest in the matter. “We thought the federal government would fulfil its responsibility, but that did not happen,” he remarked.
The top court judge also asked the additional attorney general about the status of the summary, saying, “At what stage is the summary? Do you know anything?”
He questioned what was happening with appointments to the superior judiciary and noted that the confirmation of judges of the Sindh and Peshawar high courts, which had been approved by the Judicial Commission, had also been held up.
“The summary cannot simply be kept pending like this,” Justice Tahir said, noting that 18 days had now passed.
During the hearing, the petitioner's counsel Zahid Asif Chaudhry argued that the constitutional time limit for the president to act on the summary had already expired. He said 18 days had now passed since the summary was sent, beyond the 15-day period previously referred to in the proceedings.
“The Constitution is very clear about what happens when the prescribed time expires,” Chaudhry told the court, adding that “the president cannot keep the summary pending in this manner”.
The AAG also told the court that, as the prescribed period had already elapsed, the president could no longer reject the summary.
The court's written order also asked the government to explain the consequences of allowing the summary for the appointment of judges to remain pending indefinitely. Attorney General Mansoor Usman Awan was separately issued a notice to assist the court in the matter.
The court adjourned the hearing until tomorrow and directed the federal government and the Ministry of Law to submit their reports before the next hearing.
Background
The latest legal challenge came against the backdrop of an increasingly contentious constitutional debate over the president's role in judicial appointments. President Zardari had neither approved the Judicial Commission's recommendations nor returned the summary with objections, prompting questions over whether the Constitution permitted an indefinite delay in acting on judicial appointments.
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The federal government was also considering approaching the superior judiciary to seek a constitutional interpretation of the matter. While the Supreme Court had previously ruled that the president did not have the authority to reject nominations made by the Judicial Commission, Article 175A(8) of the Constitution did not prescribe a timeframe within which the president had to act on the recommendations.
In its meetings on July 20 and 21, the Judicial Commission had recommended the appointment of three additional judges to the Islamabad High Court, 10 to the Lahore High Court, three to the Sindh High Court and three to the Balochistan High Court. It had also recommended the confirmation of four additional judges of the Peshawar High Court and a six-month extension in the tenure of Sindh High Court Additional Judge Justice Khalid Hussain Shahani.
However, Justice Shahani's tenure expired on July 28 before the recommended extension took effect.
Legal experts believed the impasse could ultimately require judicial intervention, particularly on the broader constitutional question of whether a statutory or constitutional deadline should govern presidential action on Judicial Commission recommendations.
Government officials had privately linked the delay to dissatisfaction within the Pakistan Peoples Party (PPP) over the outcome of the Judicial Commission's recent meetings. According to officials, the party's preferred nominees for the Sindh High Court had failed to secure the commission's backing, with both judicial and executive members reportedly agreeing that no candidate below the age of 45 should have been appointed.
PPP leader and Judicial Commission member Senator Farooq H Naek had proposed 33 candidates for appointments across the four high courts. However, commission members had said the party could have secured appointments for other candidates had it not insisted on two preferred nominees for the Sindh High Court.