ISLAMABAD: The procedure for appointment of superior court judges and the recent decisions by the Judicial Commission (JC) regarding elevation of judges in the Peshawar High Court (PHC) have put the legal fraternity on edge.

The lawyers have sought withdrawal of the names of judges recommended by the JC at its Oct 17 meeting and called for further improvement in the appointment procedure under Article 175A of the Constitution.

To express their reservations, a delegation of lawyers led by Peshawar High Court Bar Association (PHCBA) President Isa Khan and representatives of the District Bar Association Mardan visited the Supreme Court on Wednesday.

“We have delivered to the office of the chief justice the copy of a resolution adopted by the PHCBA at its Oct 25 meeting against the JC recommendations. We have also met Supreme Court Bar Association President Kamran Murtaza and Parliamentary Committee (PC) Chairman Naveed Qamar,” PHCBA General Secretary Ayaz Khan told Dawn.

According to the resolution, the nominees are associates of the chief justices of the Supreme Court and the PHC. Haider Ali, a nominee from Peshawar, belongs to the chamber of Chief Justice Nasir-ul-Mulk; Younas Tahim from D.I. Khan is his professional partner and Ghazanfar Qazi from Mansehra is a class fellow of the incumbent chief justice of PHC.

The nominees did not have the requisite competence and credibility and their calibre and antecedents were below the required level, the resolution said, adding that the legal fraternity of Khyber Pakhtunkhwa was unanimous that they were not fit to become judges of the PHC.

The resolution regretted that there was no element of competition in the JC recommendations because for the five vacancies in the high court only five names were put before the commission, although propriety demanded that at least two names should have been considered for each vacancy.

Similarly, it said, Article 175A or the Judicial Commission Rules 2010 did not recognise any scrutiny committee to finalise the names. Hence, the short listing, if made by such a committee, had no legal backing.

The resolution explained that the law required that all the names should have been brought before the JC for scrutiny and the legal acumen and credibility of the nominees weighed by the commission itself. The process of putting the names before the JC did not fulfil the criterion envisaged under Article 175A, it said.

It regretted that only five names had been sent by the PHC chief justice to the scrutiny committee and feared that if such an absolute authority or discretion was extended to the chief justice, the JC would become redundant.

The SCBA also adopted a similar resolution at its 16th annual general meeting in Lahore seeking review of Article 175A and resolved that a committee of senior lawyers and representatives of bar associations and councils would draft amendments to the provision.

The SCBA said the composition of the JC had allegedly been hijacked by the judges while the role of representatives of lawyers and the government and parliament had merely been reduced to a rubber stamp.

“Even more regrettable is the widely shared perception that some members of the JC have bypassed merit and are exerting their personal bias, prejudices and associations in the selection of names nominated by high courts,” the resolution said.

The SCBA resolved that the next elected body after Oct 31 elections would come up with a new formula for appointment of judges and present it before the SCBA general body within three months.

After its approval, representatives of the bar associations and councils will chalk out a strategy to get a constitutional amendment passed by parliament so that the appointment of judges to the superior courts does not remain solely within the discretion of judges.

A set of proposals made by the Pakistan Bar Council for amending the JC Rules 2010 is also pending before the JC. The proposals suggest purposeful and meaningful consultations with the PBC representatives before sending the proposed names to the commission by the SC chief justice or chief justices of high courts.

Published in Dawn, October 30th , 2014