Justice Qazi Faez Isa, a member of the Judicial Commission of Pakistan (JCP), has called into question the “hasty” meetings of the commission in his absence and urged the CJP Umar Ata Bandial to postpone the meeting being held to consider the elevation of seven additional judges of Sindh High Court (SHC) as well as confirmation of 13 additional judges of Lahore High Court (LHC).
In a strongly-worded letter addressed to the chief justice, the top court's senior puisne judge said it appeared that more care was exercised in the appointment of a cook than in the appointment of judges, adding he took great exception to the manner in which these meetings were summoned.
“A cook's ability and antecedents are checked, but in the appointment of judges, who will be determining the fate of the people, caution has been thrown to the wind."
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Justice Isa, who is currently in Spain, said he came to learn about the two meetings of the JCP scheduled to be held on June 28 and 29, respectively, through media reports, regretting that neither the honourable CJP nor the secretary of the JCP informed him.
He said his private secretary sent him photos of the three large boxes of documents, presumably containing the particulars of the nominees and specimens of their work.
"Let us be allowed to do our constitutional duty properly and with due deliberation.”
Therefore, he suggested, it would be appropriate to postpone the meetings of the JCP till after the SC vacations. “This will also give all JCP members the possibility to participate, and after having had the opportunity to examine the documents in the said 5 boxes. They would also have the requisite time to make enquiries about the proposed nominees.”
‘Is this arrogance or flaunting of unaccountability?’
Justice Isa, who has earlier called for the dismissal of the incumbent secretary, went on to regret that his concerns about the latter remain unaddressed.
“Serious concerns expressed verbally and in writing, about the secretary remain unaddressed; the courtesy of a reply is not even extended. Is this disdain, arrogance or a flaunting of unaccountability? And, does such conduct strengthen and build institutions or weaken and destroy them?” he asked.
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He said that when matters are determined unilaterally and arbitrarily, and “the secretary cum registrar is completely unaccountable, one may well question what legitimacy attaches to the Supreme Court taking issue with those who similarly exercise powers in their respective domains."
Nonetheless, the judge said that "if we must persist in the folly of acting arbitrarily and ensuring the packing of courts, then please arrange for a video link facility for me from Spain so he could further record his objections to the illegal convening of these meetings".
The senior-most judge asked the JCP’s secretary to print out his letter and deliver it to all members of the commission, adding that since this was a constitutional matter of utmost national importance concerning the destiny of the people of Pakistan, it be released to the press, after soliciting approval of the CJP, in the interest of transparency and as Article 19A of the Constitution mandates the provision of information.
Why meetings should be called off
The justice raised 19 points as to why the JCP meetings should not have been called.
Firstly, Justice Isa said, these meetings could have been held earlier, that is, when the SC was not on vacation. They can be held when vacations are over.
"The honourable CJP himself issued the notification regarding SC vacations, which was circulated to all concerned and published in the official gazette. Consequently, normal/regular work is suspended during notified-gazetted vacations,” he said, noting the SHC and the LHC were also on summer vacations.
He pointed out that the 20 vacancies sought to be filled in did not suddenly occur, saying they have existed for years. “Where lies the sudden need to fill them, and, to do so in such a tearing rush?”
Justice Qazi Isa, who is in line to become the chief justice of Pakistan, also said that the tenure of the 13 LHC additional judges was recently extended by 6 months, asking why was the matter brought up again so soon afterwards.
“Does special treatment with regard to LHC incumbents not create unnecessary misgivings? Will those in other provinces and of Islamabad not legitimately question this differential treatment? And, will this provide a pretext to those who want to create fissures in the unity of the nation?”
“The reason to extend the tenure of the 13 LHC additional judges was that we did not have the opportunity to examine their documents contained in 2 boxes. Which now have become 4 boxes that we have not had the time to examine,” the letter read.
He asked whether it was all reasonable to presume that JCP members have examined the voluminous documents contained in a box with regard to the nominees of the SHC in a few days. “And, those members on sanctioned leave and who are abroad are not given an opportunity to examine them at all.”
The senior-most judge, who sent the letter via WhatsApp, drew the attention of the CJP as well as of JCP members to the tradition of a senior-most judge chairing one of the two committees (antecedents and competence) and asked why has he been denied this responsibility with regard to these nominees.
“Incidentally, I am the only judicial member of the JCP who has lived and practised in Sindh. Then does it stand to reason to exclude me from consultation with regard to appointments to the SHC? And, is it not insulting that I have not been nominated to chair either of the two committees regarding SHC appointments?”
'Ugly head of provincialism, ethnicity'
Justice Isa lamented that the “ugly head of provincialism and ethnicity” has raised itself because of the treatment meted out to the honourable CJ of the SHC by the former CJP.
“He was bypassed by the then CJP, stating that he was not fit for appointment to the Supreme Court, yet just a few days later the same CJP proposed that he be appointed as an ad hoc judge of the SC. Did he become fit overnight? Or was this done to ridicule and humiliate him? If the CJ of a province is held in such contempt by the head of the institution, then is it justified to punish for contempt those others who belittle judges?”
He mentioned that the honourable CJ of the SHC had earlier nominated a different group, including a woman, but he withdrew the names apparently because of the “pressure exerted by those pursuing an ethnic agenda”.
“Having undermined the authority of the honourable CJ of the SHC was this unexpected?”
He said that the constitution mandates appointing an acting CJ when a CJP is out of the country despite the fact that the latter may be capable of performing his functions of office through video-link, WhatsApp, etc.
Therefore, what is the justification to hold meetings of the JCP in the absence of the senior-most judge, who is abroad during gazette court vacations?
“The honourable CJP had also directed the issuance of a no-objection certificate ('NOC') to me, then why call JCP meetings at a time when it is known that I am abroad?” he asked.
“When the matter of the appointment of a female judge to the SC was being considered much was said by those advocating such an appointment, despite the fact that it was pointed out that the total number of female judges in the superior courts would remain the same. Yet those advocating more female judges have so soon turned a blind eye to the fact that there is not a single female amongst the 20 nominees.”
He further lamented that no effort was made to contact him and find out where he was and arrange for a video-link facility to enable his virtual participation, and asked if it was then wrong to presume that the sole reason for calling these meetings is to ensure that he would not participate.
“The Constitution places a heavy responsibility on all members of the JCP to abide by their constitutional duty. But, they are not allowed to undertake their constitutional duties in a meaningful way,” the letter concluded.
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