SHC, PHC CJs proposed for elevation to SC

Senior Puisne Judge Justice Isa proposes calls for upholding seniority rule

ISLAMABAD:

Supreme Court’s Senior Puisne Judge Qazi Faez Isa has proposed names of Sindh High Court (SHC) Chief Justice Ahmed Ali Sheikh and Peshawar High Court (PHC) Chief Justice Musarrat Hilali for elevation to the Supreme Court.

Sources revealed to The Express Tribune that Justice Isa has written a letter to all the nine members of the Judicial Commission of Pakistan (JCP) for filling the two SC posts that have been lying vacant for months.

Under the JCP Rules 2010, it is the prerogative of a chief justice to initiate proposals for appointment of judges to the superior judiciary.

However, Justice Isa in another letter written to the JCP members last year said Rule 3 of the JCP Rules 2010 only meant that the nominees be routed through the chief justices concerned, not that the concerned chief justices alone might make nominations.

He had highlighted that the commission was set up to make the nomination and selection process inclusive and transparent by diluting the power of the chief justice instead of enhancing it.

Since taking oath as the chief justice of Pakistan (CJP) on February 1, Justice Umar Ata Bandial has failed to evolve a consensus on appointment of SC judges. Five SC judges retired last year and two seats are still vacant.

One section of the JCP, including the superior bars, has kept on insisting that seniority rule should be followed while appointing SC judges. The other section, led by CJP Bandial, has given preference to other aspects including merit and competence for elevation of judges.

It was witnessed that the situation became worse in the SHC because of the junior judges' elevation to the SC. There is frustration among senior SHC judges, who the JCP ignored while filling vacant SC posts.

Read SC to take up bill clipping CJ’s powers on May 2

Lawyers belonging to Khyber-Pakhtunkhwa (K-P) are also upset over delay in the elevation of the PHC judges to the SC. Recently two senior PHC judges retired but their names were not considered for elevation to the SC. Justice Musarrat Hilali took oath as acting PHC chief justice on March 31.

Interestingly, CJP Bandial last year proposed elevation of former PHC chief justice Qaiser Rashid to the SC but majority of the JCP members were in favour to defer his nomination.

Voices have been raised—both by sections of the bench and the bar— over what is seen as an “unjust” representation of provinces in the apex court.

Last year, a delegation of four PHC judges met with CJP Bandial to convey their concerns over the non-nomination of a judge of the PHC for elevation to the apex court.

Currently, CJP Bandial does not have a majority in the JCP to get junior judges elevated to the SC and a deadlock still persists on the appointment of SC judges. Now the SC is divided into two groups on ideological lines.

Some senior lawyers believe that there is little chance of CJP Bandial accepting Justice Isa's proposal regarding elevation of Justice Sheikh and Justice Hilali to the SC as  CJP Bandial does not subscribe to seniority rule.

In July 2021, when the JCP was considering the nomination of Justice Muhammad Ali Mazhar, Justice Bandial had pointed out that SHC Chief Justice Ahmed Ali Sheikh had not written any reported judgment in the last three years because of the burden of administrative work.

“The commission cannot overlook a deficiency nor relax the criteria for nominating a permanent judge to the Supreme Court,” he had said.

The JCP consists of nine members including five senior SC judges, the federal law minister, the Attorney General for Pakistan (AGP), a Pakistan Bar Council (PBC) representative and a retired judge.

A senior lawyer agreed that there is little chance of the chief justice getting appointed as SC judges in view of the previous views of CJP Bandial. However, he said, if both the nominees are overlooked by the JCP chairman--the CJP--then there will come a strong reaction from the K-P and Sindh provinces

“One of the nominees [Justice Hilali] is a female Pakhtun judge while the other one [Justice Sheikh] is an ethnic Sindhi. Currently, no ethnic Sindhi judge work in the SC,” he said.