IHC petition challenges delay in acting on JCP recommendations

A petition filed before the Islamabad High Court (IHC) on Wednesday challenged President Asif Ali Zardari’s delay in approving a summary for the appointment of high court judges.

It argued that his inaction amounts to a failure to perform “a mandatory public and constitutional duty”, warrants a writ of mandamus, and has contributed to an acute shortage of judges disrupting the administration of justice.

The petition was filed by Advocate Luqman Zafar Chaudhry through counsel Zahid Asif Chaudhry.

It sought a writ directing the president, through his secretary, to immediately approve the summary forwarded by the prime minister following the Judicial Commission of Pakistan’s (JCP) recommendations for appointments to the Islamabad, Lahore, Sindh and Balochistan high courts, as well as the confirmation of additional judges.

The petitioner argued that the JCP, chaired by the chief justice of Pakistan, completed the constitutional process by recommending the appointments on July 20 and 21.

The summary was subsequently forwarded to the president under Article 48 of the Constitution.

The petition stated that the president had “not yet given his assent nor returned the said summary but held it without any legal justification”. It argued that the Constitution assigns the president only a limited role in the judicial appointments process.

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It further stated that the oath-taking ceremony for the recommended judges had been scheduled for July 27. However, it “could not take place and stood indefinitely postponed” because the president had not approved the summary.

According to the petition, Article 48 requires the president to act on the advice of the prime minister. It permits only one exception: returning the advice for reconsideration within 15 days.

“The Constitution thus contemplated no third option of indefinite silence or inaction,” the petition argued. It added that once the constitutional period had expired, the president became bound to act on the advice tendered.

The petitioner contended that by withholding the summary, the president had effectively converted “a narrow, time-bound and essentially formal” constitutional function into “a power of veto or indefinite deferral”.

It argued that such a course undermines the independence of the judiciary guaranteed under Articles 2A and 175(3) of the Constitution.

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Citing previous Supreme Court judgements, the petition argued that the constitutional framework requires judicial appointments to proceed through a “transparent, collegial and time-bound process free of executive discretion”.

It further maintained that executive authority “must flow strictly and in the manner prescribed by the Constitution”. The same principle, it argued, applies with “even greater force” to the president’s role under Article 48.

Drawing an analogy with Article 75 of the Constitution, which governs presidential assent to legislation, the petitioner argued that the Constitution consistently envisages a time-bound role for the president. It “did not admit of indefinite inaction,” the petition said.

The petition further argued that the president’s continued failure to act constitutes a failure to perform “a mandatory public and constitutional duty”. It said a writ of mandamus was therefore the appropriate constitutional remedy.

It also argued that the delay had left the superior judiciary functioning with “an acute shortage of judges”.

According to the petition, the shortage is “crippling the administration of justice”, delaying the disposal of cases and infringing litigants’ fundamental rights to access to justice and a fair trial under Articles 9, 10A and 25 of the Constitution.

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The petitioner also alleged that, based on “news reports and public statements attributed to functionaries of the State”, there were “grave apprehensions” that the delay stemmed not from a bona fide constitutional exercise.

Instead, it argued, the delay resulted from “extraneous political considerations unconnected with the constitutional scheme of Article 175A”.

The petition requested the court to direct the president to immediately approve the summary. It also asked the court to declare the continued failure to act beyond the constitutionally prescribed 15-day period “illegal, without lawful authority, and of no legal effect”.

It further sought directions requiring the respondents to disclose when the Presidency received the summary and explain the reasons for the delay.

The petition also sought directions restraining the respondents from taking “any steps inconsistent with the recommendations duly made by the Judicial Commission of Pakistan” until the case is finally decided.

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.

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.Read More