The process of judges appointment in the Supreme Court through the Judicial Commission of Pakistan (JCP) is under severe criticism not only by the representatives of superior bars but also by some JCP members who are dissenting the nominations in this regard.
Justice Qazi Faez Isa case has severely affected the working of the apex court. It is being perceived that SC judges have divided into two camps and there is a mistrust among judges on the issue of judges appointment.
Likewise, efforts should be made to set criteria regarding appointment of SC judges. Discretionary powers of CJP regarding judges appointment should be structured. The JCP has to fill six vacancies of judges in the next one year. Due to mistrust, the first female judge could not be elevated to SC in the country’s history. Likewise, there is uncertainty among senior high court judges seemingly ignored for appointment in the apex court. Now more than ever, there is need for dialogue within the institution on the appointment of judges. Full court meetings should be held by the SC consistently to involve every judge and ensure more transparency. After dialogue among judges, superior bar representatives should be invited to list their concerns regarding the appointment process. Every stakeholder must show flexibility in order to make the institution powerful as the perception of division among SC judges will affect the independence of judiciary and further allow powerful circles to encroach their domain.
The controversy started, when Chief Justice of Pakistan Gulzar Ahmed, as Chairman JCP, nominated Sindh High Court (SHC) junior judge Muhammad Ali Mazhar for the SC in July. Justice Mazhar is fifth on the SHC judges seniority list. Despite protest from superior bars, the JCP by majority of five to four approved the nomination on July 28. Subsequently, the commission, by the same majority, approved the nomination of the SHC Chief Justice Ahmed Ali Sheikh as ad-hoc judge of the apex court for one year without his consent.
However, the JCP on September 9 could not reach a consensus on the nomination of Lahore High Court Judge Justice Ayesha Malik as an SC judge despite the fact that Justice Ayesha Malik is number four on the LHC judges seniority list.
Lawyers reaction
The superior bars strongly reacted to the nomination of junior judges and boycotted court proceedings all over the country on days JCP met to consider these nominations. No lawyer appeared before the Supreme Court on September 9.
Bars representatives hold that judges should be appointed to SC on the seniority principle. While the movement is led by senior lawyers from the Hamid Khan-led Professional Lawyers Group, the Independent Lawyers Group led by Asma Jahangir has also broken from the past and opposed the recent nomination of junior judges for SC. The latter group had earlier hailed Justice Qazi Muhammad Amin Ahmed’s appointment and remained silent on the elevation of three other junior judges.
There are many reasons for the Independent group’s shift. Firstly, the elected leadership of this group belong to small provinces wherein there is strong resentment against elevation of junior judges to SC. The upcoming SCBA elections may be a second reason for this strong view as well. Thirdly, there is a perception of ‘court packing’ among lawyers – they allege judges are being elevated through a ‘pick and choose’ approach that ignores competent senior judges not deemed ‘like-minded.’
PBC representative in JCP Akhtar Hussain in the last meeting said that the commission’s rules were required to be amended and the bar had given its proposals in writing for this purpose but no meeting was held on the matter. He added that the bar was of the view that the vacancy should be filled by a Islamabad High Court judge, whose representation was not in the SC. He also maintained that the bar was against the policy of ‘pick and choose’ of junior judges.
He said the bar is concerned about why the IHC chief justice, being the senior most, was not being considered for elevation to the SC. Likewise, lawyers are questioning why SHC senior judge Justice Aqeel Ahmed Abbasi was not considered. Lastly, lawyers believe that filing of curative review by the federal government in Justice Isa case is a serious move and see the elevation of every judge to SC in this context.
Case against seniority
During the last JCP meeting, CJP Gulzar observed that seniority alone has never been used to determine appointments to SC and that the principle was considered along with suitability, competence and merit. He shared details of 41 judges who were elevated to SC in violation of seniority principle. The CJP also referred to the SCBA 2002 judgment to justify the junior judges elevation to SC. He also wondered why lawyers are protesting the issue.
During the meeting, Justice Umar Ata Bandial said consititutional provisions give JCP members the authority to make nominations for appointments in the superior judiciary. He stated that we have a certain responsibility to each other, to the constitution and to the constituency that we represent. He stated that there are two sections in the commission. One section consists of lawyers of exceptional standing having their own constituencies. The other section comprises the Judicial Members of the Commission, who have a different perspective from the bar with respect to the requirements for appointment of a judge.
He stressed that it would be unbefitting for him ask for time to consult with sixteen of his other judicial colleagues. He further stated that we have to express our view. We may not have taken an oath but we hold a constitutional position to perform our duty as members of this commission.
“An effort is being made to defer matters and to disempower the commission. We must take decisions that are given to us by the law and we must discharge our duty. We all have respect for the bar and all of us come from the bar and we all will go back to the bar,” said Justice Bandial.
Justice Bandial shared articles of Lahore based lawyers with the members of the commission and stated that standards should not be compromised for the appointment in the Supreme Court. ‘Best minds should be appointed and merit should be an important criterion. “Seniority cannot be the principal consideration because this is not a promotion but an affirmative action under the Constitution. He said the expertise on constitutional law is a must for judges of the Supreme Court,” he said. “We have a pendency of more than fifty thousand cases and to decide those competent judges are needed. If seniority is the criteria then there is no need of the Commission, as judges in the superior courts would then be appointed through a conveyer belt mechanism.”
Attorney General of Pakistan Khalid Jawed Khan said there was a constitutional scheme whereby the CJP initiated the nomination as the head of the family.“Once he [the CJP] makes the recommendation, and unless there are compelling reasons, I would attach maximum deference with the head of the family and fully support the nomination,” he said.
Law Minister Dr Farogh Naseem believes that judges should be appointed on merit rather than seniority. He said that there is no need for reasons as why senior judges are being superseded in the appointment of SC judges.
Dissenting opinion
Justice Qazi Faez Isa always dissented the appointment of junior judges in the apex court. He believes that junior judges should be allowed to become chief justice of respective high court.
Likewise, another JCP member Justice Maqbool Baqar, who objected recent three nominations said that that issue is part of public discourse, being discussed by bars, civil society and media. Unfortunately, we are facing a crisis. There is resentment in bar and in the civil society in respect of the commission.”
He said that according to his assessment, the resentment was not without any basis. “The bar is asking for structured discretionary rules giving a viable solution to the situation ... if the bar is taken on board and on the basis of their input some criteria is evolved that is workable and viable, then all the future problems according to his understanding will be resolved.”
He observed that there was a perception of packing of the courts that needed to be dispelled. Justice Baqar also said that questions are being raised upon our independence and our perception of independence is eroding.
During the matter related to elevation of Justice Muhammad Ali Mazhar, Justice Baqar said that when four SHC judges are superseded then reasons should be given in this regard. He said some members of the bar are of the view that Justice Abbasi is better than Justice Mazhar. “If Justice Abbasi is not better then he has the same level of intellectual capacity, performance and conduct,” Justice Baqar said.
New JCP member Justice Sardar Tariq Masood emphasised that ignoring the principle of seniority compromised the independence of the judiciary and its fallout derailed the democracy. “We learn from the history that we do not learn from history whenever judges were appointed,” he said.
Another JCP member Justice (R) Dost Muhammad Khan said that the judgment in the Supreme CourtBar Associalign case was passcd by five members bench of the Supreme Court in 2002 while the judgment in the Al-Jchad Trust case reported as PLID 1996 SC 324 was also passed by a bench of same strength earlier. It is a settled principle of law that bench of the same strength cannot differ with a proposition of law enunciated by the earlier bench. So the judgment passed in Al-Jehad Trust case is binding for all times to come unless reversed by a larger bench more than of the same strength.
Justice retired Dost Muhammad Khan stated that in Al-Jehad Trust case emphasised on the seniority although by way of passing remarks certain observations were made about fitness and competence. He believes that seniority is the prime principle for appointment of SC judges.
There is logic in every member's opinion. Its time to first set cretaria through dialogue rather than judicial rulings. It is not good omen that CJP nominee for SC judge is being opposed by JCP members. Seniority principle should not be followed strictly but there is need to end perception of favouritism in judges elevation. Appropriate representation of every province in the apex court should also made.