IHC reserves ruling on maintainability of plea challenging presidential delay in judicial appointments

ISLAMABAD: The Islamabad High Court (IHC) on Thursday reserved its verdict on the maintainability of a plea challenging President Asif Ali 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 on Wednesday, urged the court to direct the president to approve the summary forwarded by the prime minister for the appointment of 19 additional judges and the confirmation of five judges to the Islamabad, Lahore, Sindh, Balochistan and Peshawar high courts. Justice Arbab Muhammad Tahir took up the plea on Thursday, with the counsel for the petitioner arguing that the Judicial Commission of Pakistan (JCP) had recommended the appointments under consideration 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. After the JCP — which is responsible for appointing judges to the superior judiciary and is headed by Chief Justice of Pakistan Yahya Afridi — recommended the judicial appointments last month, the summary was forwarded by the prime minister to the president for assent. The delay in presidential assent to judicial appointments has begun to affect the functioning of the superior judiciary, with the term of an additional judge of the Sindh High Court (SHC) having already expired and four additional judges of the Peshawar High Court (PHC) facing a similar situation within days. 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 if 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 the court to issue directives to the president and 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 of the Constitution states that the president shall act “on and in accordance with the advice of the cabinet or the prime minister”. However, it adds, the president can ask the cabinet or the prime minister to reconsider the advice within 15 days of receiving it and shall act in accordance with the advice tendered after reconsideration within 10 days. But, sources in the Presidency have contended that the provision also empowered the president and did not set a timeframe for appointments. They cite its second clause, which states: “The president shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so”. Legal experts have, however, noted that the Supreme Court had previously held that the president lacked discretion in appointing superior court judges, and must follow the prime minister’s advice. Noting that the notifications for judicial appointments were usually issued by the law ministry after the president’s approval, the petitioner’s lawyer also contended that the law ministry could, however, issue the notifications even without the president’s approval and that the president’s role in the process was ceremonial. The president had no discretion beyond granting approval, and if the approval was withheld, the competent authority should proceed with issuing the notification, he argued. Justice Tahir, however, continued to question the legal basis for issuing a writ against the president and asked the counsel to identify the competent authority responsible for issuing appointment notifications. The counsel reiterated the law ministry was the competent authority and requested the court to seek responses from the federation, the Prime Minister’s Office and the law ministry regarding the status of the summary for the judicial appointments. After hearing his arguments, the court declined the request to issue notices at this stage and reserved its decision on the maintainability of the petition.