Judicial matters

ByMalik Nasir Mahmood Aslam

Seasoned social activist


August 13, 2022

Malik Nasir Mahmood Aslam talks about a persisting issue

The specific role ascribed to the office of the Chief Justice of the Supreme Court has become the focus the controversy that has enveloped the apex judiciary. The objections have been repeatedly raised about the extraordinary remit assigned to this particular office with many law professionals considering this role to be heavily tilted in favour of increasing the tendency of arbitrariness in the conduct of judicial matters. This matter has now come into the open with the superior judiciary clearly divided into factions that have started airing their difference of opinion publicly creating tremendous sensation in the higher judiciary. Currently the furore has been caused by the most controversial of the CJP’s powers pertaining to the prevailing practice that he alone can recommend names of candidates who are then considered by the JCP for nomination to a parliamentary committee (PC) for appointment to the Supreme Court (SC). The exercise of such arbitrary powers quite recently resulted in bad blood that came to fore during a meeting of JCP whose proceedings were strongly contended and the bitterness went to the extent that the Supreme Court had to make the proceedings of the meeting public, an unprecedented measure in the judicial annals of the country.

There is a raging controversy about the release of the taped conversation and questions have popped up about the intention of the Chief Justice of Pakistan and there is no clear explanation about this measure. These questions have further complicated the working, and even personal relationship between the members of high judiciary and this situation has become a heated public issue. Though rifts within the superior judiciary have existed for some time but with advent of the recent controversy the intense bitterness within the highest judicial ranks have even surprised the intense skeptics of the judicial apparatus of the country. Not only the reputation of superior judiciary has been besmirched by the episode, it has also sharpened the difference of opinion among the JCP members who agree with the CJP’s position and those arguing for seniority until objective criteria are framed for elevating judges to the apex court. The most fatal consequence of the entire story was that the hallowed halls of justice are themselves in peril of being tainted by the fallout that is a very unnerving spectre. The relative credibility of the judiciary has also been badly hurt in the backdrop that five JCP members have written to the chief justice mentioning that while many factors were to blame for the prevailing factionalism, the solution lay only with the CJP, who as head of the legal fraternity could heal the divide by amending JCP rules and overseeing the framing of more objective criteria for judges’ nomination.

One of the letters brought out the crux of the matter that pointed out that the JCP’s deliberations were meant to be confidential, thereby allowing the members to give their opinions frankly and freely, while protecting the reputations of the judges whose names were under discussion. The letter added that this requirement made it necessary to consult the commission members before deciding to relax the rules and release the recording. This is an extremely valid point and it cannot be denied that this measure speaks volumes about indiscretion committed in this respect. Another harm done is judges about whom less than positive views were expressed at the meeting as well as the JCP members who uttered them both have cause to feel aggrieved particularly judges of the Sindh High Court where there is a robust resentment about non-presence of a Sindhi-speaking judge in the Supreme Court. This controversy has also highlighted the issue of making the process of selecting and elevating judges to the Supreme Court more inclusive and transparent and this matter will now be impossible to ignore. It is often pointed out in this context that over the years the powers of managing the affairs of the apex court have been concentrated in the office of the Chief Justice that is now considered not only detriment to imparting justice as was experienced recently by many objections raised on the composition of benches but also demoralising the other judges who feel alienated to the point that they have now publicly started airing their discontent.

In wake of the current crisis, it has become imperative to re-evaluate the dominant role of the Chief Justice of Pakistan in judicial appointments that is widely believed to be a stumbling block in the conduct and performance of the superior judiciary. Just recently this dichotomy was highlighted by former CJP Khosa who observed that it would be naïve on the part of the members of superior judiciary if they deny having some very honourable and respected paterfamilias in the past then there were also others who were not held by the people in that esteem. He warned against the system depending too much on the integrity, independence and good choice of just one man. It must be appreciated that this is a very apt warning and ignoring it one more time would be extremely problematic for the apex judiciary. TW


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