Noor Israr describes a worrying scenario
The superior judiciary of the country is going through a rough patch these days owing to many factors and is losing its credibility in the eyes of all and sundry. Apart from some contested judicial decisions that have intensely polarized the political situation, the judiciary is also faced with internecine rivalry that has the potential to disrupt the very balance of judicial system of the state. In the latest such episode, the Judicial Commission of Pakistan (JCP) held a detailed though heated discussion on the elevation of five high court judges to the Supreme Court but deferred its meeting without a decision in order to acquire more information about existing candidates and maybe even consider other names. However, the meeting immediately produced a furore in which two powerful sets of judges disputed not only the proceedings but also the manner in which the meeting concluded. Both sides presented their side of the narrative public that was intensely contested.
The issue of elevating judges to the Supreme Court has now become quite a regular issue with many critics pointing out that efforts are made by some sitting judges to cram the Supreme Court with likeminded judges for quite obvious reasons. However, there is a growing majority of judges that wants to stop such practice in tracks and this majority is slowly gaining ground. Apparently, the opposing faction is led by senior pusine judges particularly Justice Qazi Faez Isa who is singularly ignored to sit on benches that have recently undertaken some important cases having a wide impact nationally. This tendency is quite obviously worrying to all concerned in the country as Pakistan is a post-dictatorial society in which judicial decisions play an extraordinarily role for arbitration.
The judges considered for elevation to the Supreme Court were Justice Shahid Waheed of the Lahore High Court, Peshawar High Court Chief Justice Qaiser Rasheed Khan and Justice Syed Hasan Azhar Rizvi as well as Justice Muhammad Shafi Siddiq and Justice Naimatullah Phulpoto of the Sindh High Court. The positions of judges at the apex court had fallen vacant after the retirement of Justice Mushir Alam, former chief justice Gulzar Ahmed, Justice Maqbool Baqar and Justice Mazhar Alam Khan Miankhel. The apex court is currently functioning with 13 judges against a sanctioned strength of 17. Justice Sajjad Ali Shah will reach superannuation in August.
According to a press note issued by the Supreme Court, the meeting was attended by seven members of JCP in-person while senior puisne judge, Justice Qazi Faez Isa and Attorney General for Pakistan (AGP) Ashtar Ausaf attended via Zoom from Spain and USA, respectively. The press note said that names of all five judges proposed were considered by the JCP and, after detailed discussion, the chairman proposed that the meeting be deferred to enable the CJP to place additional information and data about those already proposed, and if he deems it appropriate, add more names to the list for consideration by the JCP.The proposal to defer the meeting was supported by Justice Ijazul Ahsan, Justice Sajjad Ali Shah, retired Justice Sarmad Jalal Osmany and Attorney General Ashtar Ausaf. The date of the next meeting will be decided later.
The contention immediately started when soon after the meeting, Justice Qazi Faez Isa wrote a letter to the CJP and other members of the commission in which he recalled how he, and four other members, had rejected the names of three junior judges of the Sindh High Court and one junior judge of the Lahore High Court. In the case of the Peshawar High Court CJ, it was decided that since he was neither the most senior chief justice, nor the most senior high court judge in the country, his name could be considered if it was placed alongside the CJs of other high courts and most senior judges. The participants concluded that the Constitution did not permit appointments to anticipated vacancies.
Justice Isa’s letter said Chief Justice Umar Bandial did not dictate the decisions and left the meeting quite abruptly followed by Justice Ijazul Ahsan. Therefore, it had now fallen to the acting secretary to draw up the minutes of the decisions taken at the JCP meeting. Justice Isa maintained that the eyes of the nation are transfixed on JCP and they have constitutional right to know what was decided. Therefore, the acting secretary should immediately release this decision to the media to end unnecessary speculation and misreporting as the meeting was held behind closed doors. It is expected that the minutes will accurately reflect all that transpired.
On the other hand, informed sources mentioned that the nominations were rejected by a majority of five to four during a heated session lasting three hours in which the CJP, Justice Ijazul Ahsan, Justice Sajjad Ali Shah and former judge Justice Sarmad Jalal Osmany voted in favour of the nominees whereas Justice Qazi Faez Isa, Justice Sardar Tariq Masood, the AGP, Law Minister Azam Nazeer Tarar and Akhtar Hussain, the Pakistan Bar Council’s (PBC) representative in the commission, voted against. They maintain that this is unprecedented; never in the past have all the nominations been opposed like this, although on 4 September, 2021, the nomination of Justice Ayesha Malik was deferred after a four-four split. The head the Supreme Court Bar Association (SCBA), was quick to appreciate the development, saying the government had responded in a positive manner and on merit and mentioned that he was grateful to those JCP members who rejected the nomination since they supported the joint resolution in which both PBC and SCBA had called for strict adherence to the rule of law and the principle of seniority while considering the elevation of junior judges to the Supreme Court was in violation of the seniority principle.
It was explained that the majority at the JCP meeting stressed that the seniority principle should be strictly followed for elevation of judges to the apex court. All members of the commission suggested that Islamabad High Court Chief Justice Athar Minallah be considered for elevation to the Supreme Court. Referring to the nomination of Justice Shahid Waheed of the Lahore High Court, the JCP rejected the case since seven judges from Punjab had already been elevated to the Supreme Court. Referring to the SHC, the majority members argued that if Chief Justice Ahmed Ali Sheikh was not competent for elevation, he should be prosecuted by invoking Article 209 of the Constitution. Otherwise, they added, he should be elevated to the apex court as he is the most senior high court judge in the country.
Justice Sheikh had declined to be appointed as ad hoc judge of the Supreme Court after the JCP decided on 10 August last year to appoint him for one year provided he agreed. The majority of JCP members were of the view that Justice Irfan Saadat Khan and Justice Aqeel Ahmed Abbasi of SHC were as competent as the judges whose names have been proposed for elevation. About the nomination of Peshawar High Court’s chief justice, the majority was of the view that consideration should be deferred since Justice Roohul Amin Khan was junior to Justice Qaiser Rasheed Khan by just one day, therefore, his name should also be considered. TW
Judicial conflict
ByNoor Israr
Discerning taste in music and is currently studying development economics at UCF
Dated
August 7, 2022
Noor Israr describes a worrying scenario
The superior judiciary of the country is going through a rough patch these days owing to many factors and is losing its credibility in the eyes of all and sundry. Apart from some contested judicial decisions that have intensely polarized the political situation, the judiciary is also faced with internecine rivalry that has the potential to disrupt the very balance of judicial system of the state. In the latest such episode, the Judicial Commission of Pakistan (JCP) held a detailed though heated discussion on the elevation of five high court judges to the Supreme Court but deferred its meeting without a decision in order to acquire more information about existing candidates and maybe even consider other names. However, the meeting immediately produced a furore in which two powerful sets of judges disputed not only the proceedings but also the manner in which the meeting concluded. Both sides presented their side of the narrative public that was intensely contested.
The issue of elevating judges to the Supreme Court has now become quite a regular issue with many critics pointing out that efforts are made by some sitting judges to cram the Supreme Court with likeminded judges for quite obvious reasons. However, there is a growing majority of judges that wants to stop such practice in tracks and this majority is slowly gaining ground. Apparently, the opposing faction is led by senior pusine judges particularly Justice Qazi Faez Isa who is singularly ignored to sit on benches that have recently undertaken some important cases having a wide impact nationally. This tendency is quite obviously worrying to all concerned in the country as Pakistan is a post-dictatorial society in which judicial decisions play an extraordinarily role for arbitration.
The judges considered for elevation to the Supreme Court were Justice Shahid Waheed of the Lahore High Court, Peshawar High Court Chief Justice Qaiser Rasheed Khan and Justice Syed Hasan Azhar Rizvi as well as Justice Muhammad Shafi Siddiq and Justice Naimatullah Phulpoto of the Sindh High Court. The positions of judges at the apex court had fallen vacant after the retirement of Justice Mushir Alam, former chief justice Gulzar Ahmed, Justice Maqbool Baqar and Justice Mazhar Alam Khan Miankhel. The apex court is currently functioning with 13 judges against a sanctioned strength of 17. Justice Sajjad Ali Shah will reach superannuation in August.
According to a press note issued by the Supreme Court, the meeting was attended by seven members of JCP in-person while senior puisne judge, Justice Qazi Faez Isa and Attorney General for Pakistan (AGP) Ashtar Ausaf attended via Zoom from Spain and USA, respectively. The press note said that names of all five judges proposed were considered by the JCP and, after detailed discussion, the chairman proposed that the meeting be deferred to enable the CJP to place additional information and data about those already proposed, and if he deems it appropriate, add more names to the list for consideration by the JCP.The proposal to defer the meeting was supported by Justice Ijazul Ahsan, Justice Sajjad Ali Shah, retired Justice Sarmad Jalal Osmany and Attorney General Ashtar Ausaf. The date of the next meeting will be decided later.
The contention immediately started when soon after the meeting, Justice Qazi Faez Isa wrote a letter to the CJP and other members of the commission in which he recalled how he, and four other members, had rejected the names of three junior judges of the Sindh High Court and one junior judge of the Lahore High Court. In the case of the Peshawar High Court CJ, it was decided that since he was neither the most senior chief justice, nor the most senior high court judge in the country, his name could be considered if it was placed alongside the CJs of other high courts and most senior judges. The participants concluded that the Constitution did not permit appointments to anticipated vacancies.
Justice Isa’s letter said Chief Justice Umar Bandial did not dictate the decisions and left the meeting quite abruptly followed by Justice Ijazul Ahsan. Therefore, it had now fallen to the acting secretary to draw up the minutes of the decisions taken at the JCP meeting. Justice Isa maintained that the eyes of the nation are transfixed on JCP and they have constitutional right to know what was decided. Therefore, the acting secretary should immediately release this decision to the media to end unnecessary speculation and misreporting as the meeting was held behind closed doors. It is expected that the minutes will accurately reflect all that transpired.
On the other hand, informed sources mentioned that the nominations were rejected by a majority of five to four during a heated session lasting three hours in which the CJP, Justice Ijazul Ahsan, Justice Sajjad Ali Shah and former judge Justice Sarmad Jalal Osmany voted in favour of the nominees whereas Justice Qazi Faez Isa, Justice Sardar Tariq Masood, the AGP, Law Minister Azam Nazeer Tarar and Akhtar Hussain, the Pakistan Bar Council’s (PBC) representative in the commission, voted against. They maintain that this is unprecedented; never in the past have all the nominations been opposed like this, although on 4 September, 2021, the nomination of Justice Ayesha Malik was deferred after a four-four split. The head the Supreme Court Bar Association (SCBA), was quick to appreciate the development, saying the government had responded in a positive manner and on merit and mentioned that he was grateful to those JCP members who rejected the nomination since they supported the joint resolution in which both PBC and SCBA had called for strict adherence to the rule of law and the principle of seniority while considering the elevation of junior judges to the Supreme Court was in violation of the seniority principle.
It was explained that the majority at the JCP meeting stressed that the seniority principle should be strictly followed for elevation of judges to the apex court. All members of the commission suggested that Islamabad High Court Chief Justice Athar Minallah be considered for elevation to the Supreme Court. Referring to the nomination of Justice Shahid Waheed of the Lahore High Court, the JCP rejected the case since seven judges from Punjab had already been elevated to the Supreme Court. Referring to the SHC, the majority members argued that if Chief Justice Ahmed Ali Sheikh was not competent for elevation, he should be prosecuted by invoking Article 209 of the Constitution. Otherwise, they added, he should be elevated to the apex court as he is the most senior high court judge in the country.
Justice Sheikh had declined to be appointed as ad hoc judge of the Supreme Court after the JCP decided on 10 August last year to appoint him for one year provided he agreed. The majority of JCP members were of the view that Justice Irfan Saadat Khan and Justice Aqeel Ahmed Abbasi of SHC were as competent as the judges whose names have been proposed for elevation. About the nomination of Peshawar High Court’s chief justice, the majority was of the view that consideration should be deferred since Justice Roohul Amin Khan was junior to Justice Qaiser Rasheed Khan by just one day, therefore, his name should also be considered. TW
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