“A large number of people will be deprived of a high court,” Chief Justice Iftikhar Mohammad Chaudhry observed, asking whether the government wanted to see a situation where there was no court in Balochistan. - File Photo.

The proposal was made during the hearing of the 18th Amendment case by the Supreme Court.

The tenure of the four additional judges, out of the five appointed in the Balochistan High Court, will end on Sept 5 and their replacements cannot be made till a judicial commission is set up to recommend names to a yet to be formed eight-member parliamentary committee.

The two forums don't exist because Article 175-A of the Constitution, which calls for their creation, is under challenge before the apex court along with several other articles of the amendment. The article cannot be implemented until the court's judgment on the new method of appointing judges under the 18th Amendment.

“We are facing a situation so it will be better to refer the matter to a joint sitting of parliament under Article 267-A of the Constitution,” senior counsel Shahid Hamid told the 17-judge full court on behalf of the Punjab government and PML-N chief Nawaz Sharif.

He said the Punjab government would support the move if the federal government piloted a resolution in the joint sitting to resolve the issue.

The parliament, unanimously adopting the amendment, had altered Article 267-A to allow itself, through a joint sitting, to address problems that might arise because of its implementation.

Article 267-A(1) says “If any difficulty arises in giving effect to the provisions of the Constitution, 18th Amendment Act, 2010, or for bringing the provisions into effective operation, the matter shall be laid before both houses in a joint sitting which may by a resolution direct that the provisions shall during such period as may be specified in the resolution have effect subject to such adaptations, whether by way of modification, addition or omission, as may be deemed necessary or expedient.”

According to Clause (2) of the article, the power shall be available for one year from commencement of the act.

None of the four outgoing additional judges of the BHC — Justice Jamal Mandokhel, Justice Ghulam Mustafa Mengal, Justice Tahira Safdar Baqri and Justice Noor Mohammad Muskanzai — has been notified as the senior judge.

The proposed judicial commission for the appointment of high court judges comprises the chief justice and two most senior judges of the Supreme Court, a former judge of the Supreme Court nominated by the chief justice, the federal law minister, the attorney general, a senior advocate nominated by the Pakistan Bar Council for two years, the chief justice and the most senior judge of the high court concerned, the provincial law minister and a senior advocate to be nominated by the provincial bar council for two years.

The commission will be incomplete because of the absence of a senior judge in the high court. Justice Asif Saeed Khosa said the tenure of a number of additional judges in all the high courts would end next month, but only the BHC would face a constitutional crisis.

“A large number of people will be deprived of a high court,” Chief Justice Iftikhar Mohammad Chaudhry observed, asking whether the government wanted to see a situation where there was no court in Balochistan.

Attorney-General Maulvi Anwarul Haq assured the court that the matter was under consideration of the federal government. He said he would seek instructions and inform the court on Monday.

Justice Tassaduq Hussain Jillani said the apex court had the option of going for a judicial order, but the judges were extending deference to parliament and would like to see it resolve the issue.

Some constitutional lawyers told Dawn that Article 267-A could resolve the controversy.

“The court can give recommendations to parliament in view of impracticalities and difficulties in the implementation of the amended provisions of the Constitution and Article 267-A provides a mechanism,” a constitutional expert said.

“It will be wise on part of the apex court to give suggestions to parliament rather than follow the Indian jurisprudence on the basic structure theory,” he said.

Another lawyer said Senator Raza Rabbani, who led the 26-member parliamentary committee on constitutional reforms, could appear in the court and apprise it of possible solutions under Article 267-A.

The outcome of the court proceedings on the matter could then go to parliament for presentation of a resolution, he said.