PESHAWAR: The Peshawar High Court on Thursday set aside the decision of the parliamentary committee for appointment of judges to reject the Judicial Commission of Pakistan’s recommendation to grant six-month extension to three additional judges of the high court.

A bench consisting of Justice Abdul Shakoor and Justice Syed Arshad Ali accepted two petitions challenging the June 16 move of the parliamentary committee of disapproving the decision of the judicial commission to extend the tenure of the three judges Justice Fazal Subhan, Justice Shahid Khan and Justice Dr Khurshid Iqbal.

The additional judges were appointed on July 18, 2022, for a period of one year, which will expire on July 17, 2023.

The bench directed the federal law, justice and parliamentary affairs secretary to immediately communicate the JCP’s decision to the prime minister for his advice to the country’s president to notify under Article 197 of the Constitution the extension of the tenure of the three high court additional judges for six months with effect from July 18.

Sets aside move of parliamentary panel to reject JCP recommendation on matter

“The parliamentary committee in view of Article 175-A of the Constitution as interpreted by the apex court in Munir Ahmad Bhatti case (PLD 2011 SC 407) was having no lawful authority and jurisdiction to disapprove the unanimous decision of the Judicial Commission of Pakistan dated 07.06.2023, whereby it in its collective wisdom extended the tenure of the three additional judges of this court for six months w.e.f. 18.07.2023,” the bench ruled in its two-page short order.

The detailed judgement will be released later.

One of the petitions was filed by Peshawar High Court Bar Association, which was represented by Barrister Mudassir Amir, whereas the other one was filed by lawyer Maqsood Ali, for whom Barrister Dr Adnan Khan appeared.

Deputy attorney general Sanaullah Khan and Senate Secretariat deputy director Mohammad Javed Iqbal also appeared in the case.

The bench has also referred to its last year judgement delivered on May 10, 2022, regarding initial appointment of the said three additional judges and which was upheld by the Supreme Court in its order on May 30, 2023, observing that in view of those judgements the decision/recommendation of the JCP should be deemed to have been confirmed and approved in terms of clause 12 of Article 175 of the Constitution for issuance of the notification by the country’s president under Article 197 on the advice of the prime minister.

The counsel for petitioners said that on Jan 5, 2022, the JCP had recommended six people for elevation as the additional judges of the PHC, including the three judges in question, who were from the judicial service, as well as three lawyers.

They said that the recommendations were referred to the parliamentary committee for confirmation in accordance with Article 175-A of the Constitution.

The lawyers said in an in-camera meeting on Jan 19, 2022, the committee confirmed the recommendation regarding the three lawyers but rejected those related to the three judges.

They added that several petitions against that move of the committee were filed with the high court, which accepted those petitions on May 10, 2022, and directed the government to implement the recommendation of the JCP.

The counsel said the three additional judges were appointed last year for a period of one year.

They contended that the federal government had challenged that judgement of the high court in the Supreme Court through different appeals, but the apex court rejected the plea on May 30, 2023, upholding the verdict of the high court.

The lawyers said that as the tenures of the three judges were about to end, the JCP held its meeting on June 7.

They said that according to media reports, the federal law minister and attorney general for Pakistan informed the meeting that the government intended to file a review petition against the May 10 Supreme Court orders, so the matter should be postponed for the time being.

The counsel contended that the JCP, relying on that proposal, recommended extension of the tenure of the three judges by six months, but the parliamentary committee, which met on June 19, decided not to confirm that recommendation.

DAG Sanaullah contended that the parliamentary committee had acted within its jurisdiction and had not committed any illegality.

He said that there was a seniority dispute in the issue as judicial officer Kaleem Arshad was ahead of the three judges on seniority list. He added that the appeals of the affected judges on that issue were pending before the apex court.

The DAG contended that Article 175-A was inserted in the Constitution through the Constitution (Eighteenth Amendment) Act and the parliamentary committee was also included in the judges appointment process.

He argued that it was the mandate of the parliamentary committee to look into the recommendations of the JCP and it could disapprove any of the recommendations if any cogent reason was available.

Published in Dawn, July 7th, 2023