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Islamabad -- The Islamabad High Court (IHC) on Monday directed the federal government to explain the constitutional consequences of leaving the Prime Minister's advice pending for an indefinite period, according to a ruling on a public interest petition that challenges President Asif Ali Zardari's delay in approving judicial appointments. Justice Arbab Muhammad Tahir issued notices to the president, the federation, and the attorney general, requiring them to file separate reports detailing the timeline and status of the summary forwarded by Prime Minister Shehbaz Sharif.

The petition was filed by advocate Luqman Zafar, while its counsel Zahid Asif Chaudhry contended during the hearing that Article 48(1) of the Constitution employs the mandatory "shall", which casts a constitutional obligation on the president to act on the advice of the prime minister. The proviso to that article allows the advice to be returned for reconsideration within 15 days, after which the president must act within ten days, the counsel argued, citing precedent to say the president cannot transform the process into an indefinite deferral or a veto.

The IHC had disparate its verdict on the maintainability of the plea on August 6, and after issuing the ruling on Monday, it directed the government and the presidency to furnish reports.

Coverage Comparison

Dawn's two reports on the matter present complementary angles. The first, published after the ruling, focused on the court's directive and the petitioner's legal argument that the president is bound to act on the advice. The second, which followed government deliberations, elaborated on the federal government's inclination to potentially proceed with notifications without presidential assent, invoking Article 48(1) on the ground that the 15-day period for presidential action has expired. The latter also detailed the immediate effects of the delay on serving judges.

Government's Deliberation

Dawn reported, on the basis of and informed sources, that the federal government is considering notifying the appointment and confirmation of high court judges even though President Zardari has not formally approved the summary. The government is examining the possibility of issuing the notification under Article 48(1), arguing that the president was bound to act on the summary within 15 days of its submission, with that period having been exceeded. However, the same report mentioned that some officials advise caution, warning that bypassing the standard procedure could lead to complications.

The delay has already caused practical problems. The JCP during its meetings on July 20 and 21 recommended the appointment of 19 additional judges to high courts, confirmed the services of four with 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. The Ministry of Law and Justice has not yet issued notification for any of these appointments because the president has not given assent.

Because of the absence of notifications, four additional judges of the Peshawar High Court completed their tenure and ceased to hold office on August 4, despite the earlier JCP confirmation. Similarly, an additional judge of the Sindh High Court, whose tenure was also targeted for extension, relinquished office after expiry on July 29. This has led to a diminished bench strength in those courts.

Key Claims

  • The Islamabad High Court addressed a public interest petition challenging President Asif Ali Zardari's delayed approval of judicial appointments.
  • Justice Tar was directed the government to spell out the constitutional consequences of pending the prime minister's advice indefinitely.
  • The petitioner, advocate Luqman Zafar, speaking through counsel Zahid Asif Chaudhry brought the petition.
  • The JCP recommended the appointment of 19 additional judges and confirmation of five judges from high courts, and it also extended the tenure of one additional judge of the Sindh High Court.
  • The president had not, as of the report, given assent to the summary forwarded by PM Shehbaz Sharif.
  • Four Peshawar High Court judges and the one Sindh judge lost their posts after tenure after deadlines because the appointment notices were not issued.
  • The federal government considered invoking Article 48(1) to notify the appointments without waiting for the president.

Perspectives

  • Petitioners: Advocate Luqman Zafar's side argued that Article 48(1) expressly obliges the president to act on the advice, and that the failure to do so is an unconstitutional exercise of discretion. The proviso provides only a limited window for reconsideration, after which the president must act.
  • Federal Government: Citing informed sources, Dawn reported that the government is examining the position under Article 48(1) that the presidential grace period has expired, thus allowing it to proceed with notifications on its own initiative. This view is tempered by concerns that bypassing the procedure could lead to legal complexities.