Justice Isa pens letter against CJP Bandial's summoning of JCP meeting

Supreme Court Judge Justice Qazi Faez Isa has raised objections over the summoning of a Judicial Commission of Pakistan (JCP) meeting regarding the appointment of five apex court judges nominated by Chief Justice of Pakistan (CJP) Umar Ata Bandial.

The CJP has summoned a meeting of the JCP on July 28 to consider five judges for the apex court.

In his letter, to the JCP Chairman and other members, Justice Isa has requested that “the JCP meeting should be postponed. Instead, let us first meet to consider how to proceed further in the matter. And, if chief justices and senior puisne judges of the High Courts are to be bypassed then to first develop for consideration of the JCP criteria for nominees since the then senior most judge failed to accomplish the task assigned to him”.

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Justice Isa said that the CJ wants to “rush through a most delicate matter in a very questionable manner. He wants 2,347 pages of documents to be examined in a week. However, I have not even been provided with these documents. Instead, an attempt to Whatsapp them was made, but only the first document of 14 pages I accessed and could read. Regarding the others my phone states 'storage full'. I have informed of this but the documents have still not been couriered to me or sent to the Pakistan Embassy in Madrid for onward transmission to me. If someone else was dealt with similarly and the matter was litigated, the court would have deplored such arbitrariness and rushed conduct as it would constitute insufficient notice and would have violated the constitutional provision of 'due process'. The CJ cannot blitzkrieg due process and sufficient notice,” he said.

“A factor which the CJ mentions as a disqualifying factor for being chosen is the delay in writing judgements. High Courts judges have far more work assigned to them as compared to SC judges. If this is a criterion, and there is nothing wrong with it, let us also self-reflect and do a little self-accountability. The CJ should order a survey of SC judges to ascertain (1) how long the CJ and each judge takes on average to write judgments, (2) how many cases are disposed of through ‘short orders’, (3) how long after does it take for the detailed reasons to come and (4) how many are still awaited. I may mention that the malaise of 'short orders' is a novelty; Article 189 of the Constitution mentions 'decisions' of the SC, 'short orders' are an invention not sanctioned by the Constitution,” the letter stated.

“The kind of power exercised by the CJ is not permitted by the Constitution. The CJ arbitrarily and unilaterally decided: (1) the number of judges to be appointed, (2) the High Court from which they should be taken, (3) considered judges upto a particular number, (4) gave his preemptive opinion on who the best candidates are, (5) put up for consideration to the JCP only his preselected candidates, (6) formulated a questionnaire soliciting information, which included compelling serving judges to disclose their financials (ironically the CJ refused to do so himself when the SC received a written request for information pursuant to Article 19A of the Constitution) and (7) sought medical information in derogation of the constitutional protection of privacy and dignity,” added the letter.

Justice Isa also said that prior to writing this letter he penned a note to the CJ requesting him “not to act arbitrarily and reminded him that arrogance (takabbur) and ego (anaa) is abhorred by Almighty Allah, but since the CJ did not respond he is compelled to write to all members” as this is “the dictate” of his office and of the oath taken by him “to defend and protect the Constitution”.

“When the CJ was the senior most judge he was appointed to chair a five-member committee of the JCP tasked to determine criteria in the appointment of judges, in the event that Chief Justices and senior-most judges were not to be nominated. The task assigned to him remains incomplete. Only one meeting of the committee was called on 9 March 2022; Hon’ble Justice Umar Ata Bandial signed the minutes of this one meeting writing that: 'Hon'ble Chairman thanked all the members for sharing their valuable thoughts and suggestions and expected to meet soon with some concrete ideas on paper to proceed further.' No further meeting took place, no ‘concrete ideas on paper’ came and the committee did not submit its report to the JCP yet the CJ (now) says that the committee had completed its task. The members of the committee who I spoke to confirm said that the committee met only once, and no decision was taken.”

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“However,” he said, “the CJ superciliously took it upon himself to create a meaningless and perfunctory ‘criteria’. And, having done so himself proceeds to gauge his pre-selected nominees against this ‘criteria’. With respect, this mocks the JCP and violates the Constitution,” added the judge.

“All appointments must be made in accordance with the Constitution, on the basis of predetermined and non-discriminatory criteria. And above all without any impression of favouritism. The Constitution does not grant the CJ any powers additional to those of the other members of the JCP; the CJ is only designated as the Chairman of the JCP,” said Justice Isa.

“The CJ further discriminates by excluding for his kind consideration Chief Justice and Judges from the Balochistan High Court and the Chief Justice and Judges from the Islamabad High Court. The prevailing sense of deprivation of the peoples of these areas is being further aggravated. With utmost respect, it appears that CJ has resorted to reverse engineering by first deciding who all to nominate and then find some pretext to justify his nominations,” he further contended

“The matter of appointing judges to the superior courts requires utmost care and due deliberation as it is a matter of extreme delicacy. CJ please do not ridicule the JCP and your nominees by contravening the Constitution. Restricting the JCP to consider only the CJ's pre-selected nominees is inappropriate. The JCP deserves to be treated with respect and consideration by its Chairman,” implored the justice.

“The CJ admits to having acted discriminatingly as he says that he decided to consider only a certain number of judges, and this he did arbitrarily. He informs that he considered 3 judges from Peshawar, 6 from the Lahore till and 12 from Sindh. This does not stand to reason because the Lahore High Court is much larger than the High Court of Sindh; neither the same number were considered nor of the same proportional ratio," the letter stated.

Justice Isa said that the “anticipated vacancy will occur on the retirement of Hon'ble Justice Sajjad Ali Shah. He is being called upon to choose his own successor. This is unconstitutional. Pakistan is not a kingdom of yore in which kings decided their successors. If this is permitted then the CJ may next call a meeting of the JCP to fill-in ‘anticipated vacancies’ that will occur in respect of all the judges of the SC, including those retiring after him. Nominating or appointing judges prior to their retirement is a major breach of the Constitution. Pakistan is to be governed according to the Constitution and not as per the desire or wish of the CJ”.

“SC has repeatedly held that those decisions which have a long-term effect must not be made by one just prior to retirement. This was presumably also a reason why the Hon'ble Justice Mazhar Alam Miankhel gracefully declined to recommend any judge for appointment close to his retirement. Hon'ble Justice Sajjad Ali Shah remains a judge for only two weeks more yet has been burdened to recommend five judges who will remain in office for years,” he said.

“The matter of appointing judges to the superior courts requires utmost care and due deliberation as it is a matter of extreme delicacy. CJ please do not ridicule the JCP and your nominees by contravening the Constitution. Restricting the JCP to consider only the CJ's pre-selected nominees is inappropriate. The JCP deserves to be treated with respect and consideration by its Chairman,” he furthered.

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Justice Isa also said that in the JCP meeting held on June 28, “everyone, except the CJ and the Hon'ble Justice Ijazul Ahsan, voted to postpone the meeting as there was no justification to call it during the gazetted summer vacations and as the senior most judge was on sanctioned annual leave. It was also noted that for the first time ever, the senior puisne judge had been excluded from chairing either the antecedents or the competence gauging committees of the JCP. Therefore, calling yet another JCP meeting when all the same reasons, on the basis of which earlier meetings were postponed, still subsist and there is the added reason of the Attorney-General having recently been operated upon, is inexplicable.”

“I most respectfully submit that the CJ cannot reject decisions of the JCP. In calling another meeting during notified-gazetted vacations, when some members are on annual leave, and at a time when the Attorney-General is recovering from the second surgery he has recently undergone, is unjustified. The democratically taken decision by the JCP not to meet in such circumstances must be abided by. Democracy is the bedrock of the Constitution and the basis on which Pakistan came into existence."

“When the CJ also knows that in a few days the senior puisne judge returns to Pakistan (insh'Allah on 13 August 2022) then why can’t he wait for a few more days? Not to have JCP meetings for months and then to schedule three such meetings when the senior puisne judge is on sanctioned annual leave suggests that the CJ does not want him to be physically participate, which is illegal and unconstitutional. Incidentally, I worked throughout the winter vacations, and generally the last to leave work late in the evening and did not leave a single pending decision nor left any ‘short order’ awaiting provision of detailed reasons.”

“The CJ did not schedule meetings when the vacancies in the SC occurred but all of a sudden wants to make wholescale appointments to the SC hurriedly. To appoint five judges means more than a third of the SC, which the CJ wants to pack during notified-gazetted vacations, and by avoiding the participation of all members,” said Justice Isa.