PESHAWAR: The Peshawar High Court on Tuesday rejected the non-confirmation of three judicial officers as its additional judges by a parliamentary committee after declaring that decision unconstitutional.

A bench consisting of Justice Lal Jan Khattak and Justice Abdul Shakoor accepted the petitions filed by three district and sessions judges (DSJs) and a lawyer challenging the decision of the parliamentary committee against confirming the recommendations of the Judicial Commission of Pakistan (JCP) for the judges’ appointment.

Following the completion of arguments by the counsel for petitioners and respondents, the bench pronounced a short order for rejecting the decision of the parliamentary committee as unconstitutional.

It will release the detailed judgement afterwards.

Declares panel can’t go against JCP’s advice

One petition was jointly filed by DSJs Fazal Subhan and Shahid Khan, while other two were submitted to the court by DSJ Dr Khurshid Iqbal and lawyer Naeem Ahmad Khattak.

The petitioners prayed the high court to declare unconstitutional, illegal and without lawful authority the impugned decision of the parliamentary committee of not confirming the JCP-recommended names, and set it aside.

They requested the court to declare that all six names nominated by the JCP for appointment as additional judges of the Peshawar High Court should be deemed to have been confirmed under Article 175-A(12) of the Constitution and the parliamentary committee was bound to send all the six names to the Prime Minister who should forward the same to the president of Pakistan for appointment.

The petitioners further requested the court to direct the parliamentary committee to send the names of the petitioners recommended by the JCP to the prime minister for forwarding it to the country’s president in accordance with Article 175-A(13) of the Constitution for appointment as additional judges.

The petitioners were represented by lawyers Abdul Lateef Afridi, Syed Mudasser Ameer, Adnan Khan and Yaseen Raza Khan and Ali Azim Afridi.

They said the Peshawar High Court had six vacancies of judges for which the chief justice consulted other judges and scrutinised the credentials of numerous candidates before recommending the petitioners as well as lawyers Kamran Hayat Miankhel, Mohammad Ijaz Khan and Mohammad Faheem Wali for appointment as additional judges for a period of one year.

The counsel said the JCP re-examined those nominations in a meeting on Jan 5, 2022, and recommended those six candidates, including the three petitioners, with a majority vote for appointment as the high court’s additional judges.

The lawyers said 10 of the 12 members voted for those candidates, while one abstained.

They contended that on Jan 19, news and social media platforms reported that the parliamentary committee did not confirm the appointment of three judicial officers over the ‘principle of seniority’ and sent their names back to the JCP for reconsideration.

The lawyers said that acting upon the decision of the parliamentary committee, the federal government didn’t send the names of the petitioners to the president for notification as the additional judges. However, the other three were made the judges.

Barrister Mudasser argued that by examining the issue of seniority-cum-fitness or competence of the judicial officers, the parliamentary panel had exceeded its authority and jurisdiction vested in it by the Constitution.

He contended that the superior courts had repeatedly declared that the parliamentary committee couldn’t reverse, veto or review the JCP’s decision on the appointment of judges to the high court and that if it did so, the move would be illegal.

Published in Dawn, May 11th, 2022