Three Supreme Court judges -- Justice Athar Minallah, Justice Hasan Azhar Rizvi and Justice Shahid Waheed – on Friday were sworn in amid a long controversy on the appointment process that has adversely affected the functioning of the SC.
No SC judge could be appointed since February this year but now Chief Justice of Pakistan Justice Umar Ata Bandial approved his three nominees through the support of two government representatives in the Judicial Commission of Pakistan (JCP) -- the law minister and attorney general for Pakistan (AGP).
The government even endorsed the nomination of two junior high court judges -- Justice Hasan Azhar Rizvi and Justice Shahid Waheed.
However, three JCP members, Justice Qazi Faez Isa, Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah, opposed their nomination.
Although CJP Bandial has succeeded in appointing his three nominees, but a debate has started as to whether or not the perception about the division among the SC judges would be ended.
There are two sections of judges within the SC -- one that believes in the seniority principle for the appointment to the top court until a criteria was evolved for this purpose and the other that gives preference to other factors including competency and efficiency.
Since April 2018, seven SC judges have been appointed against the seniority principle.
Their appointments are not only being resisted by the bar but a section of the top judiciary as well.
Justice Isa, who will be the future CJP next year, did not endorse the appointment of five SC judges against the seniority principle.
Similarly, differences among senior SC judges on the appointments issue further deepened after the JCP's July 28 meeting, wherein the CJP's nominees could not be approved.
Subsequently, the audio recording of the meeting was released.
The late Peshawar High Court Chief Justice Waqar Seth, through lawyer Hamid Khan, had challenged the appointment of junior high court judges to the SC but his petition could not be decided.
The SC judges are divided on ideological lines as is reflected in their orders in high-profile cases.
A senior lawyer said when judges' views on constitutional issues were an open secret, then the CJP should balance the composition of the benches.
He was of the opinion that CJP Bandial should not give the perception that only like-minded judges were being included in larger or special benches.
“The CJP should also end the perception that he was referring sensitive matters to his like-minded judges,” the lawyer added.
Now voices are being raised in Khyber-Pakhtunkhwa and Sindh on the appropriate representation of provinces in the apex court.
A delegation of junior judges of the PHC met with the CJP to convey their concerns over the lack of appointment of anyone from their province to the top court.
Similarly, voices are also being raised over the lack of representation of Sindhi-speaking judges in the apex court.
There is already frustration among senior Sindh High Court judges for not considering them for elevation to the SC.
After these three new appointments, the total strength of the SC is 15 and two seats are still vacant.
There is a chance that efforts will be made to appoint two SC judges unanimously by the JCP.
After completing the full strength, two ad-hoc judges can be appointed to the SC.
Interestingly, three SC judges -- Justice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Athar Minallah -- were associated with the same legal firm during their practice.
Two judges, Justice Muhammad Ali Mazhar and Justice Hasan Azhar Rizvi, are close relatives.
Currently, the strength of the judges in the apex court is eight from Punjab, three from Sindh, two from Balochistan and two -- including Justice Minallah -- from K-P.
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