ISLAMABAD, Nov 19: A constitutional crisis that may further deepen the polarisation between the executive and the judiciary is brewing over non-confirmation by the government of a set of Islamabad High Court judges, as recommended by the Judicial Commission (JC) on judges’ appointment.

Two developments marked the beginning of the current week. First, issuance of letters by the JC to Secretary to President Asif Zardari, Malik Asif Hayat, Principal Secretary to the Prime Minister Ayub Qazi and Senate Secretary Iftikharullah Babar, who is also Secretary of the Parliamentary Committee (PC) on judges’ appointment, according to a source privy to the development. The matters are time-specific and when not pursued, the JC is left with no option but to push for these.

Chief Justice Iftikhar Muhammad Chaudhry, being head of the JC formed under the 18th and 19th Amendments, recommends the names of judges for appointment, while the PC, constituted under these amendments as well, approves or disapproves the recommendations for final notification by the President.

The second development, the source said, was the constitution of a special four-judge SC bench comprising Justice Khilji Arif Hussain, Justice Asif Saeed Khan Khosa, Justice Ejaz Afzal Khan and Justice Ijaz Ahmed Chaudhry.

The bench will take up on Tuesday a petition moved by Advocate Nadeem Ahmed seeking an order for issuance of a notification confirming Justice Noorul Haq Qureshi and Justice Shaukat Aziz Siddiqui in the IHC.

The controversy also involves non-elevation of IHC Chief Justice Iqbal Hameedur Rehman to the Supreme Court to fill the only vacant seat. In his place, Justice Mohammad Anwar Khan Kansi has to be appointed as the IHC chief justice.

But the controversy deepened after the presidency earlier this month returned the summary for appointment of Justice Anwar Kansi as IHC chief justice to the JC for reconsideration because it believed Justice Riaz Ahmad Khan was the most senior judge and, therefore, he should be considered for the post.

On the other hand, the tenures of Justice Siddiqui and Justice Qureshi as IHC judges are to expire on Nov 20 and, if not extended, fate of a petition challenging the extension granted to the army chief, fixed for Nov 22, will become uncertain.

“This is a constitutional crisis and indicates that things are not going to settle down. The tussle between the executive and the judiciary will further worsen in the coming days,” feared former Supreme Court Bar Association president Tariq Mehmood.

He criticised the PC for not raising the objections, which it was now highlighting, during first meeting because the president as well as the prime minister had no role in the appointment of judges after the 18th Amendment.

He was of the opinion that the apex court would repeat what it did during the hearing about the 18th Amendment. The court granted a stay allowing a set of Balochistan High Court judges whose tenures had expired to continue to serve till the matter concluded.

In his petition, Nadeem Ahmed said all constitutional formalities, as laid down in Article 175A of the Constitution, had been completed for extension in the term of office and for confirmation as judge of the IHC during the past one month.

The federal government, the petition said, was unconstitutionally and deliberately refusing to issue the notification to confirm the decisions of the JC, along with the PC. This “illegal omission” by the government affected the smooth functioning of the Islamabad High Court and unless the apex court issued an appropriate order on an urgent basis, this could lead to a serious damage to the entire high court, it said. “The Supreme Court should not allow a mere clerical formality to be placed on par with the sacred constitutional mechanism for induction of judges into superior courts,” the petition said. It requested the apex court to declare that till the issuance of notifications, the two judges be allowed to continue to function as judges of the IHC.