Retired judges' pick sparks controversy

Legal fraternity and PTI label move as court packing

ISLAMABAD:

The nomination of four retired judges for their appointment as ad hoc judges of the Supreme Court by Chief Justice of Pakistan (CJP) Qazi Faez Isa has drawn strong criticism from the legal fraternity as well as from the Pakistan Tehreek-e-Insaf (PTI), as both view this move as “court packing” and are apprehensive about its implications.

On the other hand, one of the nominees, Justice (retd) Mushir Alam excused himself from serving as an ad hoc judge in the apex court.

On July 13, Justice Alam wrote a letter to Judicial Commission of Pakistan (JCP) Chairman Qazi Faez Isa, expressing his regret that he was unable to accept this esteemed appointment.

“When I was laid off as a judge of the Sindh High Court in 2007, I formed Vision Trust and established an eye hospital in Karachi for visually impaired persons. Later, I was reinstated pursuant to a judgment of the Supreme Court, as a Judge of the Sindh High Court with dignity and honour. I had the honour to serve as Chief Justice of the said Court and was later elevated to the Supreme Court of Pakistan. I enjoyed a long cherished judicial career and served on the bench for more than 22 years to the best of my abilities,” Justice Alam mentioned in the letter.

“Long before my retirement from the Supreme Court, I had planned to resume my unaccomplished mission to give back to society whatever, before I breathe my last. To fulfill this dream, I registered the Vision Health Care Foundation under Section 42 of the Companies Act 2017, with a mission to establish a Comprehensive Disability Management Centre. For this purpose, I have acquired 15 acres of land in Pindi Gheb

and I am dedicated to serving persons with all kinds of disabilities,” he added.

It is learnt that another nominee Justice (retd) Maqbool Baqar is still undecided. He may inform the commission of his decision after Ashura.

On the other hand, Justice (retd) Mazahar Alam Miankhel and Justice (retd) Sardar Tariq Masood have already expressed their willingness to serve as ad hoc judges. Both nominees are seen as aligned with CJP Isa’s perspective.

The PTI currently holds strong reservations about these nominations. A clear clash has emerged between CJP Isa and PTI. Despite the criticism, there is a strong likelihood that the JCP will unanimously approve the nominations of the two retired judges due to the expeditious disposal of pending cases.

One member of the commission agreed that the three-year tenure for ad hoc judges should be rationalized.

Lawyers are also suggesting that all nominees should convey to the CJP that they prefer not to be included in benches hearing cases of a constitutional and political nature.

Even the three-judge committee led by CJP Isa should consider the suggestion that retired judges should be restricted from sitting on benches hearing matters related to the interpretation of the Constitution.

Even these nominees should convey to CJP Isa that they prefer not to be included in benches hearing political cases. Similarly, lawyers hold divided opinion on the appointment of ad hoc judges in the apex court.

Independent Group members are supporting the appointment of ad hoc judges while the Professional Group is strongly opposing this move.

Seven members of the Pakistan Bar Council (PBC) have expressed concern regarding the recent proposal by the CJP to appoint ad hoc judges to the Supreme Court, stating that it could be seen as an attempt to “pack the court” and undermine the independence of the judiciary.

This proposal, outlined in a letter dated July 12, 2024, calls for a meeting of the JCP to consider the appointment of four retired judges as ad hoc judges. The meeting is scheduled for Friday, July 19.

The CJP has nominated four retired judges – Justice (retd) Mushir Alam, Justice (retd) Maqbool Baqar, Justice (retd) Mazhar Alam Khan Miankhel, and Justice (retd) Sardar Tariq Masood, citing the pressing need to address the significant backlog of cases in the Supreme Court.

“While we understand the intent to expedite the resolution of pending cases and alleviate the burden on the judiciary, we believe that this approach may raise constitutional and ethical concerns amongst the legal fraternity and public at large. The appointment of ad hoc judges under Article 182 of the Constitution of Pakistan is intended to be a temporary measure. The proposed ad hoc appointments will be seen as an attempt to pack the court thereby affecting the judiciary’s composition and decisions rather than addressing the systemic issues leading to case backlogs,” the letter said.

Seven PBC members stated that Justice (retd) Mushir Alam has already declined the offer in his letter dated July 13. They commend his refusal as a stance that highlights his awareness of the potential implications of accepting such an appointment. They called upon the other former judges to also decline the appointment.

“When democracy and rule of law is seriously undermined in Pakistan such appointments will have serious impact on the constitutional issues coming before the court. The legal community apprehends that this could lead to an attempt to undermine the judiciary’s independence for political purposes. Such actions might erode public trust in the judicial system which could have long-lasting detrimental effects on the rule of law in Pakistan.”