By Staff Reporter
ISLAMABAD: Pakistan’s superior judiciary is grappling with a mounting crisis over judicial appointments, after delays in securing presidential assent left one additional judge in legal limbo and put four more on course to suffer the same fate within days.
The term of Justice Khalid Hussain Shahani, an additional judge of the Sindh High Court, expired on July 29 after a recommendation for its extension went unsigned by President Asif Ali Zardari, despite having been endorsed by the Judicial Commission of Pakistan more than a week earlier.
Dawn newspaper reported that a similar situation was fast approaching at the Peshawar High Court, where four additional judges are due to see their own terms lapse on August 4, again notwithstanding recommendations from the commission that their tenures be renewed.
Justice Shahani was appointed as an additional judge of the Sindh High Court on January 29 last year, initially for a term of 12 months. President Zardari approved a six-month extension on January 22 this year, in line with the Judicial Commission’s recommendation, taking his tenure through to July 29.
Anticipating that a further extension would be forthcoming, the commission met on July 20 and recommended that Justice Shahani’s term be extended for a second time, again for six months. The recommendation was duly forwarded to the Presidency through the appropriate constitutional channel. But with the president yet to formally approve it, and the Law Ministry yet to issue the requisite notification, no action had been taken by the time his term expired nine days later.
The Sindh High Court nonetheless included Justice Shahani’s name on its latest roster of judges assigned to hear cases, in the expectation that formal notification of his extension would follow in short order.
Sources within the Presidency, however, indicated that an additional judge could not lawfully continue in office once his term had expired, regardless of any pending recommendation, unless and until the president granted formal approval and the Law Ministry issued the corresponding notification.
Those sources drew a parallel with the case of Justice Shaukat Aziz Siddiqui, a former judge of the Islamabad High Court, whose confirmation as an additional judge was declined by President Zardari during his first term, in October 2012, despite having been recommended by the Judicial Commission. That dispute was eventually settled by the Law Ministry, but not before reaching the Supreme Court, which ruled that the president’s function in judicial appointments had become largely ceremonial following the 18th and 19th constitutional amendments, and that he was obliged to act in accordance with the prime minister’s advice.
Peshawar judges face same predicament
At the Peshawar High Court, the situation threatening to unfold is strikingly similar. Justice Farah Jamshed, Justice Inamullah Khan, Justice Sabitullah Khan and Justice Aurangzeb, all appointed as additional judges on February 4 last year, are due to see their terms expire on August 4.
The four had originally been amongst ten additional judges of the Peshawar High Court whose confirmation was considered by the Judicial Commission at a meeting on January 15. The commission opted to confirm six of the ten as permanent judges outright, while recommending that the remaining four — including the judges now facing expiry — be granted a six-month extension instead. President Zardari approved that extension at the time, and it is this period that is now drawing to a close.
The Judicial Commission has since recommended that the four judges be granted a further extension, but as with Justice Shahani’s case in Sindh, presidential approval has yet to be secured.
Wider pattern of delay
The developments come only days after the Presidency was found to have delayed its assent to a separate batch of additional judge appointments recommended for the Islamabad, Lahore, Sindh and Balochistan high courts, a delay that has already stirred unease within legal and judicial circles. Those recommendations, cleared by the Judicial Commission on July 20 and 21, remain unnotified. The government is understood to be weighing its constitutional options should the impasse continue.
Pir Masood Chishti, vice chairman of the Pakistan Bar Council, said the legal position was unambiguous: an additional judge whose extension had been recommended but not yet notified by the president could not continue to exercise judicial functions once his term had lapsed. “Once the president grants approval and the Law Ministry issues the notification, the judges can resume office,” he said.
Haroon Rashid, president of the Supreme Court Bar Association, was more pointed in his criticism, arguing that the president did not have the constitutional latitude to withhold confirmation of judicial appointments recommended through due process indefinitely.
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