Meanwhile, the Punjab government floated the idea of sending the matter to a joint sitting of both Houses of the Parliament as envisaged by Article 267-A. "We have the option to pass a judicial order but we would like the Parliament to address the issue," observed Justice Tassdaq Hussain Jillani. Justice Jawwad S. Khawaja observed that "there would be no high court in the province in a few days."
Four additional Judges of BHC would retire on September 5 and the High Court would be left with merely its Chief Justice. Justice Asif Saeed Khosa pointed out that more than 20 judges of Lahore and Peshawar High Courts would retire next month as well. In addition, the judge said that by the middle of September all high courts would have several vacancies.
Heading the 17-member bench, Chief Justice Iftikhar Muhammad Chaudhry directed Attorney General Maulvi Anwarul Haq to submit a statement on Monday after seeking instructions from the concerned quarters on the appointment of judges to the Balochistan High Court (BHC).
The issue of imminent vacancies at BHC cropped up during the proceedings of 18th Constitutional Amendment case. The court drew attention of the AG towards the upcoming situation in the BHC, asking him how would the judicial commission be formed and how would it initiate the process of the judges' appointment as envisaged by the newly inserted Article 175-A in the constitution.
Article 175-A(5) reads: "For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:- (i) Chief Justice of the High Court to which the Member appointment is being made; (ii) the most senior Judge of that High Court." The AG stated that the matter was under consideration. However, he added, he would inform the court after consulting the concerned authorities.
Justice Jawwad S. Khawaja observed that the court had been hearing the case for almost two months and the issue had surfaced then. The court informed Waseem Sajjad, counsel for the federation, on July 26 about the issue. But nothing has happened so far, he observed.
Advocate Shahid Hamid, counsel for the Punjab government, suggested that the solution of Balochistan issue lay in Article 267-A of the Constitution. Article 267-A reads: "Power to remove difficulties.- (1) If any difficulty arises in giving effect to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, hereinafter in this Article referred as the Act, or for bringing the provisions of the Act into effective operation, the matter shall be laid before both Houses in a joint sitting which may by a resolution direct that the provisions of the Act 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: Provided that this power shall be available for a period of one year from the commencement of the Act".
However, Advocate Habib Whabul Kheri, promptly pointed out that the said provision was challenged by him because it militates against Article 239 of the Constitution.
The issue of judges' appointments at BHC emerged in August last year when Chief Justice Amanullah Khan Yasinzai and all four judges of the BHC - Justice Ahmed Khan Lashari, Justice Akhtar Zaman Malghani, Justice Nadir Khan Durrani and Justice Mehta Kalash Nath Kohli - opted for early retirement apparently to avoid references against them in the Supreme Judicial Council for having taken oath under the PCO of 2007.
Meanwhile, Advocate Mushtaq Masood, one of the members of legal team engaged by the federation to defend 18th Constitutional Amendment, concluded his arguments by saying that no embargo can be placed on parliament to change even the most important features of the constitution.
While addressing the bench in defence of Article 175-A, he said it had to be addressed politically and had nothing to do with the judiciary. The Judicial Commission and Parliamentary Committee for appointment of superior courts judges were meant to harmonise the system, he added. After the conclusion of Masood's arguments, the court adjourned the hearing for Monday (August 16).