In yet another sign that difference of opinion among the legal fraternity has seemingly sharpened, the superior bars on Saturday strongly objected to the nominations of three junior judges of the high courts regarding their elevation to the Supreme Court.
Moreover, senior puisne judge of the Supreme Court Justice Qazi Faez Isa has also objected to their elevation in a letter to Chief Justice Umar Ata Bandial.
The Judicial Commission of Pakistan (JCP) is likely to meet next week to consider the appointment of four judges in the Supreme Court. Currently, the top court is short of five judges out of a total strength of 17.
The names of judges, who have been recommended for the elevation, include Justice Athar Minallah of the Islamabad High Court, Justice Shahid Waheed of the Lahore High Court and Justice Syed Hasan Azhar Rizvi and Justice Shafi Siddiqui of the Sindh High Court.
Justice Isa raised objections to the recommendation of justices Shahid Waheed, Syed Hasan Azhar Rizvi, and Shafi Siddiqui.
Justice Syed Hasan Azhar Rizvi is fourth and Justice Shafi Siddiqui is sixth on the SHC judges’ seniority list.
Since February this year, no SC judge has been appointed. CJP Bandial had summoned a meeting of the JCP on July 28 to consider his five nominees, but a consensus could not be reached among the body’s members.
Similarly, the representatives of the Sindh bars have also strongly reacted over the junior SHC judges' nominations and passed a two-page resolution that noted with dismay that the chief justice has again nominated Justice Hasan Azhar Rizvi and Justice Shafi Siddiqui to the apex court.
After their nominations were rejected by the JCP at July 28 meeting as being an unjustifiable deviation from the seniority principle; there is no justifiable ground for nominating them again.
Even a sixth member of the commission, Justice (r) Sarmad Usmany expressed reservations as to why more senior judges in Sindh, especially Mr Justice Aqeel Abbasi, were being overlooked.
"This misuse of discretion shall create further controversy and acrimony and will harm the reputation of the Judicial Commission, the Supreme Court and the individual judges concerned."
The bar council and associations also noted the refusal of successive chief justices to nominate the senior-most high court judge in all of Pakistan (namely the Chief Justice of Sindh, Justice Ahmed Ali Shaikh) who happens to be Sindhi-speaking. It was the Judicial Commission that appointed Justice Shaikh as chief justice of Sindh in 2017 to head the entire province's judiciary.
It added that that by refusing to elevate him to the apex Court even after 5-years, it is as if the commission has sent a message to the people of Sindh that while Justice Shaikh may be considered good enough for them - he is not good enough for the people of Pakistan.
It is further resolved that in protest against the said unlawful nominations, a boycott of court proceedings shall be observed throughout Sindh on Monday, October 24, 2022 and, moreover, in the event of such nominations being approved, the same shall be jointly challenged in court.
A copy of this resolution has also been sent to all the members of JCP.
On the other hand, Pakistan Bar Council Vice Chairman Hafeez-ur-Rehman Chaudhry and Supreme Court Bar Association President Muhammad Ahsan Bhoon and other members of the Pakistan Bar Council are extremely pleased to hear about the proposal of the name of Islamabad High Court Chief Justice Athar Minallah for his elevation to the Supreme Court.
Former additional attorney general Tariq Mahmood Khokhar said that IHC CJ Athar Minallah’s nomination was long overdue.
"Per se, it is not sufficient to beguile many members of a divided Judicial Commission. A select few junior judges’ elevations to the Supreme Court without any criterion has created more turmoil.
If what one hears is true, then any deal to elevate the three junior judges would constitute an infringement of the independence of the judiciary, the loss of public legitimacy, the loss of moral high ground and, as stated by some members of the commission, a dreaded “quid pro quo” (something for something), he added.
Khokhar considered it odd that the three junior judges’ elevation is being secured through three non-judicial members.
Senior lawyers believe that vote of retired judge Sarmad Jalal Osmani will be significant for the approval of two SHC judges' nominees.
They say that frustration will further increase among senior SHC judges for consistently ignoring them regarding their elevation to the SC.
Lawyers are questioning as whether it is matter of principle of ego to ignore senior high courts judges regarding their elevation to the SC.
They say that if junior nominees will not approve then CJP may defer the matter, even though all JCP members agree on the nomination of IHC CJ Athar Minallah regarding his elevation to the SC.
It is witnessed that one section within PMLN is not in favour of both government representatives who should support junior judges' elevation to the SC.
PBC representative in JCP Akhar Hussain will strongly oppose the nomination of three junior judges regarding their appointment to the SC.
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