Chaos in the midst

Justice Mazhar's elevation by surpassing four senior judges of the SHC including the Chief Justice of the province

Tahmasp R Razvi August 13, 2021
The writer is an advocate of the high courts of Pakistan

A lot has been written and spoken about the recent elevation of Justice Muhammad Ali Mazhar to the Supreme Court. Justice Mazhar was ranked at 5th in seniority in the High Court of Sindh. His elevation was done by surpassing four senior judges of the Sindh High Court which included the honourable Chief Justice of the province as well.

From what one reads in newspapers it is evident that his elevation as a permanent judge of the top court was due to the fact that those senior to him were much less desirable by the majority of the members of the Judicial Commission of Pakistan (JCP). Some reports also suggest that the competence and capability of the four senior judges were strongly challenged by the JCP chairman along with four other members.

This news was shocking to witness at this stage. The Chief Justice of the Sindh High Court as well as three other senior judges, who all enjoy an excellent reputation, have been serving the nation since the years 2009 and 2010 respectively. If they were that incapable of performing their duties diligently, effectively and justly then why were they allowed to do the same for the past 11 years? And if they were performing their duties as expected of them, then was this simply to disgrace and tarnish their good reputation or was it simply a display of favouritism and sheer power?

Another question that comes in one’s mind is: why wasn’t anything done when it was discovered that some judges of the High Courts, who will soon be eligible for elevation to the Supreme Court, were not performing their respective duties up to the standard expected from them? Why didn’t anybody take notice of this early on?

Now in another turn of events, the JCP on 10th August decided to appoint the Chief Justice of the Sindh High Court as an ad hoc judge of the SC. Surprisingly the same judge who a few weeks ago was not found fit for appointment as a permanent judge of the apex court now is fully capable to serve it as an ad hoc judge.

But surely this could not be the case. Article 182 (b) says that an ad hoc judge can be appointed who is “qualified for appointment as a judge of the Supreme Court”. So clearly the JCP believes that the Chief Justice of Sindh High Court is fully “qualified”. Then why not make him a permanent judge rather than an ad hoc judge? Surely he is more senior and experienced than the honourable judge ranks 5th in seniority.

The precondition for invoking Article 182 of the Constitution is that there should be lack of quorum for the Supreme Court to hold or continue any sitting of the Court or for any other reason it is necessary to temporarily increase the number of judges, the Chief Justice of Pakistan (CJP) in consultation with the JCP as provided in Article 175A(2) and with the approval of the president and the Chief Justice of the concerned High Court may appoint a judge of the High Court to act as a judge of the SC. There was no material before the JCP to appreciate any condition pertaining to the lack of quorum or any other difficulty in managing the cases of Supreme Court.

Now, there are five High Courts in Pakistan and the total strength of the judges of all High Courts must be above 100. If scrutinised, there must be 20-25 judges in all High Courts who may be qualified to be appointed as a judge of SC. There is no reason apparent why the Chief Justice of Sindh High Court was only considered. One response to this may be that this is the best strategy to remove a Chief Justice of High Court without resorting to any other provision of the Constitution.

What the JCP has showcased in the last few weeks is a blatant display of power. The JCP has shown that they can and will continue to do as they please and carry on making appointments as per their whims and wishes. The bar associations and councils can continue to oppose and pass as many resolutions as they want but the JCP will continue to exercise their discretion and neither follow the seniority rule nor make any new rules. Rules could have been framed not only to better regulate the elevation of judges to the Supreme Court but also how to keep a check on the performance of judges of the High Court.

This indifference of the JCP will cause a lot of unrest amongst the legal fraternity. Not to mention it will severely demoralise senior judges across all High Courts. It seems that those who will now be in the good books of JCP members would have a better chance of elevation to the Supreme Court as compared to those who are not.

The current government has been a silent spectator in all this, as usual, solely relying on the wisdom and experience of their law minister. Even though Imran Khan before becoming the Prime Minister of Pakistan had been rigorously advocating insaf, after taking oath he has left the judiciary to its own fate. No discussions have taken place in order to improve the legal system or to rid it of corruption. Instead appointments are being made in every institution, including the judiciary, to accommodate those who are in their favour.

All of this will simply result in chaos if cognizance is not taken to remedy the wrongs that have been committed in the past and those being committed now. It would be criminal to abandon the institutions and leave them to their own fate.

Published in The Express Tribune, August 13th, 2021.

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