Judicial Schism Continues

ByManaksha Memon

A social worker devoted to social causes


October 2, 2022

Manaka Memon evinces worry about an issue having disruptive potential

While a united and focused judicial schism continues is what is needed in times of socio-political instability that is aggravating the current situation in Pakistan. Unfortunately, the schism in the ranks of the apex judiciary is refusing to abate complicating the already jumbled-up governance. The recent tendency of the senior judges of the country to air their differences in public has started to badly hurt the integrity of the Supreme Court (SC). The most painful aspect of the entire problem is the blatant viciousness witnessed in the bitter exchange which is profoundly destabilizing the tenuous relations of organs of the state. The most problematic aspect of the continuing feud is that it is getting bitter by the day and since there is no method of resolving it internally therefore it is expected to grow.

The recent spate of bitter infighting occurred when the Chief Justice (CJ) of the Supreme Court raised the ante by publically regretting that the incumbent government had scuttled the appointment of several judges named by him for elevation to the apex court. In a strong rebuttal by the senior puisne judge and his colleague, who served as CJ Lahore High Court before being elevated to the SC, in effect conveyed that they were distancing them from the assertion of the CJ of SC. The situation turned ugly when these two letters were leaked to the press in a repeat of a similar scenario that took place in the recent past. It is very unusual to witness the internal disagreements of the apex court getting displayed through media indicating that the feuding groups have almost reached a point of no return.

It is reported that the most contentious issue within the judicial confines related to the appointment of judges to the Supreme Court, which has been left with a considerably reduced strength after the retirement of several justices. In this context, the JCP had proposed five names in the meeting of the JCP but most of the nominations were resisted by the majority of the commission, which must approve all appointments to the Supreme Court. Though this meeting was adjourned without a decision the contending members of the JCP disagreed with the press release issued by the SC. This dissent assumed serious proportions when the SC released the audio recording of the meeting of the JCP to the media adding to the complications.

Judicial Schism Continues

Another angle to this disagreement was added when the JCP claimed that the government’s representatives in the commission opposed his nominees because of the Supreme Court’s ruling in favor of the PMLQ’s Pervaiz Elahi in the Punjab chief minister election case. The content of this assertion is profoundly discomfiting as its nature is essentially political and does not behoove the dignity of the superior court. In all fairness, this assertion should never be aired in public as its contentious nature has the potential of adding fuel to fire. Quite obviously, the dissenting JCP members have maintained that the chief judicial schism continues and should not ignore the seniority principle and that there needs to be a formal criterion for the elevation of judges rather than leaving nominations to the chief justice’s discretion. Interestingly, this view supports the SC bar that has supported it through and through.

Though the JCP went public with the current dissension yet bitterness was added by the senior puisne judge and his colleague who expressed dismay over CJ SC’s speech that he delivered at the new judicial year ceremony. Both of the judges wrote a letter addressed to all members of the JCP stating that the object of the ceremony was to identify judicial priorities and set out a vision for the coming year but the JCP said much more. They mentioned that the JCP sought to justify the decisions of the Supreme Court, respond to criticism of its judgments and unilaterally speak on behalf of the Supreme Court. Crucially, the letter pointed out that the SC does not comprise the JCP alone but includes all the Supreme Court judges and that the JCP commenting on pending cases was disconcerting. Both these judges are among the nine members of the JCP and had written letters soon after the commission’s meeting on 28 July meeting claiming that the meeting disapproved the nominations to elevate judges.

In this context, it is mentioned that in the latest letter, these judges wondered whether judges should commend themselves for the number of cases decided when more than a third of the Supreme Court lies vacant noting that a full court would undoubtedly have decided far more cases. They also disclosed that they had repeatedly called upon the JCP chairman to convene a meeting of the commission, both before and after the notified summer vacations, to enable the making of nominations to the Supreme Court. They added that the SC cannot be placed in suspended animation till such time that members, to use the words of the JCP, support the candidates proposed by the chairman. The Weekender


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