Who will fill the vacant post at the SC after Arab’s retirement?

SHC chief justice is the senior most high court judge of the country

ISLAMABAD:

One of the judges of the apex court, Justice Faisal Arab, retired last week and now the barrooms are abuzz with speculation about who will fill the position vacated by the judge who hailed from Sindh province.

Process for elevation of a judge to the Supreme Court has already been under severe criticism for the last three years as the last four apex court judges were elevated out of turn, ie, the principle of seniority was disregarded in their appointment.

Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth, the Khyber Bar Council and the Sindh Bar Council even challenged elevation of 3 junior Lahore High Court (LHC) judges – Justice Qazi Muhammad Amin Ahmed, Justice Aminuddin Khan and Justice Sayyad Mazahar Ali Akbar Naqvi - to the SC.

Interestingly, the petitioners did not challenge the elevation of Justice Munib Akhtar, who was on number four in the seniority list of the Sindh High Court (SHC).

Justice Qazi Muhammad Amin Ahmed was appointed to SC during the tenure of former chief justice Asif Saeed Khosa a month after his retirement from the LHC. He was 26th on the LHC seniority list.

Justice Aminuddin Khan was also elevated to the apex court even though he was fifth in terms of seniority in the LHC while Justice Mazahar Ali Akbar Naqvi was the third most senior judge in the LHC.

Currently, SHC Chief Justice Ahmed Ali M Sheikh is the senior most high court judge in the country.

However, three consecutive chief justices – Saqib Nasir, Asif Saeed Khosa and Justice Gulzar Ahmed – did not consider his name for elevation to the top court in the past. The SHC chief justice will retire on October 2, 2023.

Talking to The Express Tribune, a member of the Judicial Commission of Pakistan (JCP) – the constitutional forum that appoints judges to superior courts – said Chief Justice of Pakistan Gulzar Ahmed has yet to nominate any judge for elevation to the SC.

“However, this time the JCP should appoint a judge to the vacant SC position on basis of the principle of seniority in view of the prevailing circumstances,” he said.

According to sources, SHC chief justice Sheikh is the only ethic Sindhi among the six top SHC judges. On the other hand, after Arab’s retirement, there is no ethnic Sindhi judge left in the apex court.

Pakistan Bar Council (PBC) Vice Chairman Abid Saqi said elevation should be made on basis of seniority principle in order to avoid controversy as constitution petitions are already pending in the apex court against elevation of junior judges.

Interestingly, if the SHC chief justice is elevated to the SC then Islamabad High Court (IHC) Chief Justice Athar Minallah will become a member of the Supreme Judicial Council (SJC), which will be very significant in perspective of Justice Qazi Faez Isa case.

The SJC is the constitutional forum that can hold a superior court judge accountable. A reference was filed in the SJC against Justice Isa last year. Although the apex court has quashed this reference, the SJC may resurrect it in view of a report on the Isa family’s foreign properties.

The Parliamentary Committee on Judges Appointment also objected to insufficient representation of the smaller provinces in the Supreme Court. The committee called for giving the smaller provinces their due share in the apex court benches in order to remove a sense of deprivation among them.

The committee noted that in order to ensure the federal complexion, judges should be appointed to the Supreme Court from Khyber-Pakhtunkhwa, Balochistan, or the Islamabad Capital Territory.

No judge has been elevated from Balochistan High Court since 2014. Only one SC judge – Qazi Faez Isa – belongs to the province of Balochistan. Likewise, only two judges from the K-P are working in the apex court. IHC chief justice Minallah also belongs to the K-P.

However, rights activists do not want Justice Minallah’s elevation to the SC at this critical time. They believe that he is the only judge in the country who is giving relief to the citizens from state aggression.

Currently, eight Supreme Court judges are from Punjab and five from Sindh. Seven SC judges will retire in the next two years.

The tenures of Justice Manzoor Ahmad Malik and Justice Mushir Alam will end on April 30 and August 17 next year respectively. Five judges are going to retire in the first eight months of 2022.

Chief Justice Gulzar Ahmed will retire on February 1, 2022, Justice Qazi Muhammad Amin Ahmed on March 25, Justice Maqbool Baqar on April 4, Justice Mazhar Alam Miankhel on July 13 and Justice Sajjad Ali Shah on August 13.

Two judges will retire during the tenure of the incumbent top judge Gulzar Ahmed while the remaining five during the tenure of the next chief justice Umar Ata Bandial.

One section of lawyers, however, said as a matter of principle only the best among the high court judges should be considered for elevation to the SC and nomination of judges should be based on competence, integrity, performance and juristic ability and not merely seniority.