The writer is a lawyer based in Lahore.
The writer is a lawyer based in Lahore.

RECENTLY, the Chief Justice of Pakis­tan Saqib Nisar admonished a distinguished advocate, saying his licence could be suspended for representing Pemra, which was perceived as a conflict of interest considering that he also represented the Sharif family. While it is difficult to detect any conflict in these circumstances, it was reassuring that the issue at least mattered to the CJP.

This distinguished him from former CJP Iftikhar Chaudhry, who elected to head the very bench that was to hear the matter regarding his own son, despite being cautioned that the code of conduct provided that a judge “must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend”.

So to see CJP Nisar take ‘conflict’ more seriously was refreshing, even if his understanding could be faulted. But that confidence is dampened by a subsequent decision pertaining to appointment of high court judges. To give perspective, under the Constitution, the appointment of judges is first considered by a judicial commission headed by the CJP. The commission’s recommendation is then placed before a parliamentary committee but, unless the committee disagrees by a three-quarters majority, the recommendation is deemed approved.

Could there be a certain degree of selective judgement?

On an earlier occasion, the parliamentary committee had declined the recommendation of the judicial commission to confirm certain judges, which caused then CJP Chaudhry to discipline the committee under Article 184 of the Constitution. The ruling established that proceedings of the committee could be challenged before the Supreme Court. The committee is now required to give reasons for disagreeing with the judicial commission.

In this background, the case of seven judges of the Lahore High Court came before the judicial commission in May 2017. The commission recommended six but showed the door to Justice Erum Sajjad Gul. The parliamentary committee unanimously recommended the matter be reconsidered, however, as they could not find any justification for non-confirmation.

In parallel, the judicial commission’s decision was also challenged before the Supreme Court by a distinguished former judge of the Lahore High Court, Nasira Javed Iqbal, on the basis that if the decision of the parliamentary committee can be questioned under Article 184(3), then so too can the recommendation of the judicial commission.

On merits, it was pointed out that Justice Gul had the highest disposal rate of all judges, according to records maintained by the Lahore High Court (she decided nearly 10,000 cases in two years), and most of her judgments were upheld in appeal. These seem objective criteria to recommend confirmation, and it was further pointed out that her confirmation was recommended by the chief justice of the Lahore High Court, the puisne judge of the Supreme Court and representatives of the bar council. All absolutely compelling reasons for confirmation, so one keenly awaited the outcome.

Initially, the registrar of the Supreme Court rejected the petition, saying it did not fall within Article 184. The matter was then taken to the CJP, and he fixed it for regular hearing. After conducting the hearing, the Supreme Court dismissed the petition. It is reported that the bench expressed the view that when the commission determines that a judge is not competent, a contrary position cannot be taken by the petitioner. A question seems to have been raised regarding the maintainability of the petition as well — whether proceedings of the judicial commission could be challenged before the Supreme Court.

If the contentions in the petition are correct, neither line of reasoning is convincing to me. But the more remarkable feature of the case is that CJP Nisar headed the Supreme Court bench that dismissed the petition — and also headed the judicial commission whose decision the petition had challenged.

Under conventional jurisprudence, the CJP must not have been part of the bench considering the legality of the commission’s recommendation. This is so fundamental that it is perplexing for him to have been on the bench. Could it be that the intense focus on how other institutions are performing might have caused him to take his eye off the ball regarding the CJP’s own functions? His colleagues did not alert him either, but they too have been fighting this battle.

The net result is that an important requirement of the judges’ code — that justice is not only done, but is also seen to be done — was not met in Justice Gul’s case. This also suggests that the sooner the judges start focusing on their primary duty of adjudicating pending cases, the less prone they would be to elementary mistakes. For this, the CJP must curb his avowed desire to help leaders as sagacious as Hazrat Umar come to power. It is most unlikely that such person exists in today’s Pakistan and, if he does, he would surely rise on his own.

The writer is a lawyer based in Lahore.

Published in Dawn, May 24th, 2018

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