Justice Qazi Faez Isa, the senior puisne judge of the Supreme Court, has asked for an immediate meeting of Judicial Commission of Pakistan (JCP), which is long overdue, and suggested the names of chief justices of Sindh and Peshawar high courts to fill two vacancies of SC judges.
Against the sanctioned strength of 17 judges, the top court is currently functioning with 15 judges including Chief Justice of Pakistan (CJP) Umar Ata Bandial.
In a letter sent to all JCP members, Justice Isa has suggested that the vacancies should be filled immediately, and the names of the judges to be nominated should be recommended before time while considering the principle of seniority.
Justice Isa suggested the names of SHC CJ Ahmed Ali M. Shaikh and PHC CJ Musarrat Hilali for the appointment.
The JCP — a constitutional body that recommends elevation of judges to the superior courts — last time met in October 2022 when three judges were elevated to the apex court that too after a deadlock over ignoring seniority principle in picking the names of judges for their elevation to the apex court.
According to bar councils, elevating junior judges to top court demoralises senior judges and adversely affect judicial work, asserting that the very fact is predominantly against the principle of seniority as laid down in the Al-Jehad case or judges’ case.
In August 2022, the JCP invited Justice Shaikh by a majority decision of five to four to become an ad hoc SC judge for one year if he accorded his consent. But the SHC CJ twice declined to attend the SC sitting as an ad hoc judge and rather expressed willingness to be appointed or elevated to the position of a permanent judge.
The Pakistan Bar Council (PBC) then condemned the majority decision to appoint SHC chief justice as an ad hoc judge of the SC, arguing that such appointment was in breach of Article 182 of the Constitution, as only a retired judge could be appointed as an ad hoc judge.
Justice Hilali took oath as PHC chief justice on April 2. She took several measures to introduce judicial reforms in Khyber Pakhtunkhwa by constituting special benches for commercial and tax disputes, criminal matters, service matters, civil and family cases, with the direction to complete trials within a stipulated period.
Senior counsel Akhtar Hussain, who represents the PBC on the JCP, told Dawn that he would write to CJP Bandial to invite his attention towards calling a meeting of the JCP rules-making committee for carrying out appropriate amendments in the relevant rules for laying down the criteria for appointments of judges in the superior courts.
He was of the opinion that a JCP meeting could not be called before amending the JCP Rules, 2010.
The last rules committee meeting, held in March 2022, remained inconclusive but decided to meet again after going through the proposals being agitated by the lawyers’ representatives.
Later year-Senior puisne judge of the Supreme Court Justice Qazi Faez Isa advised Chief Justice of Pakistan (CJP) Umar Ata Bandial not to bulldoze the “due” process for appointment of more than one-third of the total number of judges in the apex court.
In a letter written to the Judicial Commission of Pakistan, headed by CJP Bandial, Justice Isa deplored the manner of summoning the JCP’s meeting to consider the elevation of high court judges to the Supreme Court.
Justice Isa said it was surprising that the JCP’s meeting had been convened to consider appointment of five SC judges during summer vacations.
Justice Isa stated in the letter that “while on my annual leave I received a Whatsapp message from the Additional Registrar of the Supreme Court informing me that the Hon’ble Chief Justice of Pakistan has convened a meeting of the JCP on 28 July 2022 to consider appointing five judges to the SC.
“When availing of annual leave no meeting of the JCP was scheduled but as soon as I left Pakistan the CJP decided to hold two meetings of the JCP to consider appointments to the Sindh and Lahore High Courts, and now a third unscheduled meeting of the JCP is to be held during the summer vacations of the SC.
“The summer vacations of the SC were notified by the CJP himself, and then these were gazetted in the Official Gazette. If the CJP renders his own notification utterly meaningless then let him first withdraw it, instead of violating it.”
He pointed out that in the JCP meeting held on June 28, everyone, except the CJP and Justice Ijaz-ul-Ahsan, voted to postpone the meeting as there was no justification to call it during the gazetted summer vacations and as the most senior judge was on sanctioned annual leave.
“I most respectfully submit that the CJP cannot reject decisions of the JCP. In calling another meeting during notified-gazetted vacations, when some members are on annual leave, and at a time when the Attorney-General is recovering from the second surgery he has recently undergone, is unjustified.
The democratically taken decision by the JCP not to meet in such circumstances must be abided by. Democracy is the bedrock of the Constitution and the basis on which Pakistan came into existence.”
Justice Isa suggested that the meeting might be deferred till August 13 when he will resume the office, adding that the JCP did not convene its meeting for months when he was present in Pakistan and then scheduled three such meetings when the senior puisne judge was on sanctioned annual leave.
The letter stated: “It suggests that the CJP does not want me to be physically present, which is illegal and unconstitutional.”
It went on to state that “the CJP did not schedule meetings when the vacancies in the SC occurred, but all of a sudden wants to make wholescale appointments to the SC hurriedly. To appoint five judges means more than a third of the SC, which the CJP wants to pack during notified-gazetted vacations, and by avoiding the participation of all members.”
The CJP wants to fill-in an ‘anticipated’ vacancy too. Article 175(8) of the Constitution does not permit this. Nor does the Constitution permit that the CJP alone propose names, which is the sole prerogative of the JCP, the letter said. It added that the anticipated vacancy will occur on the retirement of Justice Sajjad Ali Shah. He is being called upon to choose his own successor. “This is unconstitutional. Pakistan is not a kingdom of yore in which kings decided their successors. If this is permitted then the CJP may next call a meeting of the JCP to fill-in ‘anticipated vacancies’ that will occur in respect of all the judges of the SC, including those retiring after him.”
Justice Isa said that the matter of appointing judges to the superior courts requires utmost care and due deliberation as it is a delicate matter.
Addressing the CJP, the judge said: “Please do not ridicule the JCP and your nominees by contravening the Constitution. Restricting the JCP to consider only the CJ’s pre-selected nominees is inappropriate. The JCP deserves to be treated with respect and consideration by its chairman.”
The letter said that the CJP admits to having acted unfairly as he says that he decided to consider only a certain number of judges, and this he did arbitrarily. He informs that he considered three judges from Peshawar, six from Lahore till and 12 from Sindh. This does not stand to reason because the Lahore High Court is a much larger than the High Court of Sindh; neither the same number were considered nor of the same proportional ratio.
Justice Isa deplored that “CJP further discriminates by excluding for his kind consideration Chief Justice and Judges from the Balochistan High Court and the Chief Justice and Judges from the Islamabad High Court. The prevailing sense of deprivation of the peoples of these areas is being further aggravated. With utmost respect, it appears that CJP has resorted to reverse engineering by first deciding who all to nominate and then find some pretext to justify his nominations.”
He stressed that need that “all appointments must be made in accordance with the Constitution, on the basis of a predetermined and non-discriminatory criteria. And above all without any impression of favouritism. The Constitution does not grant the CJP any powers additional to those of the other members of the JCP; the CJP is only designated as the Chairman of the JCP.”