Govt mulls bypassing Zardari’s assent for judges’ appointment

AI Summary

The Pakistani federal government is considering bypassing President Asif Ali Zardari’s formal assent to judicial appointments by invoking constitutional provisions under Article 48(1). This potential unilateral action could complicate the legal and political process concerning the appointment of high court judges, a sensitive issue involving the roles of the president and prime minister.

• President has yet to approve summary for JCP-recommended hirings • Govt reviewing possibility of issuing notifications under Article 48(1) • Presidency sources warn bypassing procedure may lead to complications • IHC reserves verdict on maintainability of plea challenging delay in notifying appointments ISLAMABAD: The federal government is considering notifying the appointment and confirmation of high court judges despite President Asif Ali Zardari not having formally accorded assent to the recommendations made by the Judicial Commission of Pakis­tan (JCP), sources told Dawn. The JCP, during its meetings held on July 20 and 21, recommended the appointment of 19 additional judges to the high courts, confirmed the services of four additional judges of the Peshawar High Court and one additional judge of the Lahore High Court, and extended the tenure of an additional judge of the Sindh High Court by six months. However, the appointments have yet to be notified by the Ministry of Law and Justice as the president has not formally approved the summary. According to informed sources, the government is examining the possibility of invoking Article 48(1) of the Constitution to issue the notification, arguing that the president was required to act on the summary within a fortnight of its submission. Since that period has expired, they believe the government may proceed with the appointments. The sources said the delay had already created practical complications. Four additional judges of the Peshawar High Court, whose services were confirmed by the JCP, ceased to hold office after the exp­iry of their tenure on Aug 4 due to the absence of a formal notification. Similarly, an additional judge of the Sindh High Court, whose tenure had been extended by the JCP for another six months, also relinquished office after his term expired on July 29. When contacted, Minister of State for Law and Justice Barrister Aqeel Malik said the government would resolve the matter within the constitutional framework and in accordance with the procedure prescribed by the Constitution and the principles laid down by the superior courts. However, sources in the Presidency cautioned against bypassing the prescribed procedure, warning that any such move could trigger political and legal complications. They said Articles 48(1) and 48(2), which define the respective constitutional roles of the president and the prime minister, as well as Article 175A(8), which deals with the appointment of judges, left room for differing interpretations. According to Presidency sou­rces, any ambiguity should be resolved through mutual consultation between the president and the prime minister rather than through unilateral action. On the other hand, government sources maintained that judicial appointments were governed by constitutional provisions and that any deadlock must be resolved strictly in accordance with the Constitution. IHC reserves verdict on plea The Islamabad High Court reserved its verdict on the maintainability of a plea challenging President Zardari’s delay in approving a summary for the appointment and confirmation of judges to various high courts. The writ petition, filed by advocate Luqman Zafar Chaudhary through his counsel Zahid Asif Chaudhry, urged the court to direct the president to approve the summary forwarded by the prime minister for the judicial appointments recommended by the JCP. Justice Arbab Muhammad Tahir took up the plea on Thursday, with the petitioner’s counsel arguing that the JCP had recommended the appointments during its meetings on July 20 and 21. He contended that the summary had reportedly not been approved by the president even after 15 days had passed. The petitioner’s counsel told the court that reports suggested the government might issue notifications for the appointments in the next 48 hours. During the hearing, the contents of his client’s plea were also read out on the court’s direction, and Justice Tahir repeatedly questioned whether a constitutional petition could be maintained against the president. He asked the counsel to cite any precedent in which a writ had been issued against the president. The court also observed that the judgements cited by the petitioner did not support the proposition advanced by his counsel for issuing directives to the president. The court asked the lawyer to identify any decision in which a court had issued directions to the president regarding the exercise of powers under Article 48 of the Constitution. Article 48 states that the president shall act “on and in accordance with the advice of the cabinet or the prime minister”. However, it adds that the president can ask the cabinet or the PM to reconsider the advice within 15 days of receiving it and shall act in accordance with the advice tendered after reconsideration within 10 days. Sources in the Presidency have contended that the provision also empowered the president and did not set a timeframe for appointments. They ci