CB gets five more judges

ISLAMABAD:

The Judicial Commission of Pakistan (JCP) by a majority of 9 to 4 nominated on Friday five more judges to the constitutional bench (CB) of the Supreme Court.

The new members of the CB are Justice Hashim Khan Kakar, Justice Salahuddin Panhwar, Justice Shakeel Ahmad, Justice Aamer Farooq and Justice Ishtiaq Ibrahim. After their inclusion, the total number of CB judges has risen to 13 with three members from each province and one from Islamabad.

It is learnt that during the meeting, CB head Justice Aminuddin Khan suggested the names, a proposal endorsed by nine JCP members including Chief Justice of Pakistan Yahya Afridi, Justice Jamal Khan Mandokhail, Pakistan Bar Council (PBC) representative Ahsan Bhoon, Attorney General for Pakistan Mansoor Awan, Law Minister Azam Nazeer Tarar and three members of the treasury bench.

However, Justice Syed Mansoor Ali, Justice Munib Akhtar and two PTI lawmakers—Barrister Ali Zafar and Barrister Gohar Ali Khan—dissented from the majority, stating that all SC judges should be included in the CB.

It also learnt that Justice Mandokhail had recommended the names of Justice Athar Minallah and Justice Shahid Waheed for inclusion in the CB but a majority of the JCP members did not endorse this proposal.

The commission in another meeting also nominated Justice Riazat Ali Sahar, Justice Abdul Hamid Bhurgri and Justice Nisar Ahmad Bhanbhro as judges of the constitutional benches in the Sindh High Court.

No constitutional bench is being created in any high court except the SHC where a judge who was number 9 on the seniority list has been nominated as a member of the constitutional bench.

There is a perception in the bar that despite their seniority, dissenting judges are not being included in the CB. Justice Shah had proposed that senior most five judges should be included as members for constitutional benches.

No reason has been presented for ignoring eight senior SHC judges while constituting CBs. Same is the situation in the apex court where the judges who may have divergent opinions on high profile cases are not nominated to the CB.

Lawyers are also wondering how heads of the CB could recommend names of judges for constitutional benches. They say heads of the CBs will never recommend judges, who are senior than them, because they will no longer be able to lead the benches.

Earlier, the government representatives in the JCP were claiming that senior most judges of each province will be nominated to the CBs. However, the JCP did not follow the rule and senior judges like Justice Shafi Siddiqui and Justice Athar Minallah were not nominated as members of the CB.

Abdul Moiz Jaferii Advocate said, more constitutional judges "have been gifted" to the Supreme Court without any reasons afforded or criteria given or discussed.

"This time—with the added cherry on top—the head of the constitutional bench named the judges that he wanted, dispensing with the formality of asking the JCP to determine individually which members would be part of the bench after simply stating he needed more judges."

Jaferii stated that things are "even better in Sindh", where Justice Riazat Ali Saher made it to the constitutional bench after his previous stint in the judiciary ended with a non-confirmation and his last appearance at a Supreme Court podium saw him quote from the wrong law.

"Meanwhile, the constitutional bench adjourned the hearings of the military court case to a date in office. Asif Ghafoor as DG ISPR once said that silence is also an expression.

"It seems this constitutional bench has taken this mantra to heart, where the inability to decide cases also looks more and more like a decision," he added.

SC senior puisne judge Syed Mansoor Ali Shah, who dissented from the majority decision, had demanded that proposed rules must provide a mechanism and criteria for the nomination and determination of the number of judges for the CBs of the Supreme Court and high courts.

"The commission has already nominated and determined a number of judges of the Supreme Court and the Sindh High Court for the CBs in the absence of any mechanism or criteria in place.

"Therefore, there has been no logic or reason backing the nomination and determination of the number of judges for the CBs," said a nine-page letter written by Justice Shah to the JCP secretary in December.

Justice Shah stated that the nomination and determination under Articles 191A and 202A of the Constitution cannot be done in a vacuum and the JCP must first lay down an objective criterion through the proposed rules.

"The extension of the existing CBs of the Supreme Court is coming up tomorrow [today]. Hence it is imperative and obligatory on the JCP to formulate a mechanism and criteria for the nomination and determination of the judges for the Constitutional Benches in the general interest of the public."

Justice Shah suggested that the criteria could include the number of reported judgments of the judges on the interpretation of the Constitution—including dissents or additional notes on constitutional law that have been authored by the judge while being a part of a larger bench hearing important constitutional matters. "The Proposed Rules are currently silent in this respect," he said.

During the meeting on Friday, CJP decided to constitute the committees for setting criteria for appointment of judges of all high courts and also for nomination of judges to the CBs of the Supreme Court and all the high courts.

However, lawyers say that this exercise will be futile, if the present CB judges decide high profile cases which have impact on national politics.

There are reports that a 13-member CB may take up review petitions against judgement which held that the PTI is entitled to get reserved seats in the National Assembly. The decision is yet to be implemented.

Lawyers are wondering as to how Justice Aminuddin Khan could hear the review petitions as majority judges had passed a stricture against him and Justice Naeem Akhtar Afghan in the judgement.