JCP panel meets on March 9 to discuss criteria of appointments

ISLAMABAD:

Islamabad. Chief Justice of Pakistan Umar Ata Bandial has convened the Judicial Commission of Pakistan’s (JCP) rules committee meeting on March 9 to consider proposals for streamlining and evolving the criteria for appointing superior court judges.

The committee during its meeting would also consider amending the JCP Rules of 2010 that bestows on the chief justice unfettered powers to appoint judges.

The committee, constituted by former chief justice Gulzar Ahmed, includes Chief Justice of Pakistan Umar Ata Bandial, Justice Maqbool Baqar, former Supreme Court judge Sarmad Jalal Osmany, Attorney General for Pakistan Khalid Jawed Khan and Pakistan Bar Council’s representative Akhtar Hussain.

Despite notified several times since October 2016, the rules committee has failed to make any headway in evolving a consensus over amending the rules.

Read more: Justice Isa for ‘open-to-all’ JCP meetings

The JCP is responsible for approving the appointment of judges to the Supreme Court and five high courts of the country. The chief justice of Pakistan also heads the commission as its chairman.

The body comprises four senior-most judges of the Supreme Court, a former judge, federal law minister, the attorney general for Pakistan and a senior advocate nominated by the Pakistan Bar Council.

The provincial and Islamabad bar councils each nominate a representative as a JCP member.

Last year, superior bars staged a protest and boycotted the Supreme Court proceedings on the occasion of the JCP meeting to consider the nomination of junior high court judges for their appointment as Supreme Court judges.

The superior bars have already approached the Supreme Court requesting that Rule 3 of the Judicial Commission of Pakistan Rules, 2010, regarding discretionary powers of the chief justice of Pakistan in the judges’ appointment should be restructured.

Attorney General for Pakistan Khalid Jawed Khan had already written a letter to superior bars for evolving the criteria over the issue.

According to the AGP, multiple factors are taken into consideration for performance evaluation of high court judges, some of which may be mathematically determined on the basis of available data while other factors would be informed by general evaluation and perception.

"These could include reputation and public perception about integrity, independence and impartiality, health condition, length of service, number of cases heard and judgments delivered, number of cases heard but judgments not delivered, average duration between final hearing and delivery of judgement, commitment to constitutional values and fundamental rights, range and diversity of work, expertise in a particular area, command over language, temperament and demeanour towards colleagues, the bar and the litigants etc," he added.

During last meeting held on January 5, JCP member Justice Qazi Faez Isa had suggested that the commission meetings should be open to everyone instead of holding them in-camera -- as is currently the practice -- to ensure transparency in the appointment of the superior judiciary.

Justice Isa said he needed to see copies of petitions, statements or legal opinions of bar nominees to assess their competence but they were unavailable.

He explained that there were instances where a lawyer did not advance their arguments even if their case was very good. “The court decides the case and passes a very good judgement. The credit of such judgment cannot be given to the council.”

Similarly, in some instances, a lawyer advances very good arguments in a weak case, which was ultimately dismissed. “However, the lawyer should not be at a disadvantage because of that.”

Therefore, the judge stated that the competence of an advocate could not be judged by the verdicts passed in their cases as the judgments reflected the competence of a judge and not of a counsel.

“And if we only have to look at such judgments, we cannot comprehend their [lawyers’] competence but it would reflect the competence of the judge who wrote the judgment.”

The judge said one solution to this issue was that the lawyer’s pleadings be shared with him if he was to assess their professional competence.

Regarding nominees from the cadre, he shared his personal experience when he was the chief justice of the Balochistan High Court.

He recalled that a case of promotion of a judicial officer, who wrote very good judgments, came before him. All his colleagues and advocates informed that the judicial officer did not write the judgments by himself but his stenographer wrote them.

He further noted that a judge might write very good judgments.

However, he added, if the judge took a lot of time and was unable to decide a sufficient number of cases then their competence could not be judged on the basis of their good judgments.

“The judgments also do not show how much time a judge has taken to arrive at the controversy between the parties. Even the number of disposal of cases by a judge does not accurately show their competence.”

Justice Isa pointed out that there was some test, examination and interview for every position all over the world.

He added that if even there were 50 candidates before him and he had to judge their competence, he would place a proposition before them and would ask them to write a judgment.

“The competence of the candidate can be gauged by a judgment written by them considering it on the basis of logic, clarity of mind and how well can they express it. It is entirely different whether [a candidate] agrees with him or not but they would know the process by which he arrives at that particular outcome.”

He also stated that he would be able to assess the candidate as to whether he was logical, sequential and had considered the principles of law.

Justice Isa observed that appointments based on such a mechanism would not only ensure that the judge was disposing of cases quickly but also make correct decisions.

He added that the person appointed after adopting such criteria would be able to decide expeditiously for the litigants who were suffering.