ISLAMABAD: A day before the scheduled meeting of the Judicial Commission of Pakistan (JCP) will consider elevating Sup­reme Court judges, the country’s premier lawyer’s forums have expressed reservations and displeasure over the nominations.

A joint meeting of the representatives of the Pakistan Bar Council (PBC), the Supreme Court Bar Association (SCBA) and high court bar associations of all the provinces, provincial bar councils and members and nominees of the bar councils to the JCP expressed displeasure over appointing junior judges to the apex court as it violated the seniority principle.

A meeting presided over by SCBA President Muhammad Ahsan Bhoon and PBC Executive Committee Chairman Pir Muhammad Masood Chishti was called to consider the situation arising out of the controversies with regard to courts’ functioning and the appointment of judges.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, the judicial commission will consider elevating five high court judges to the Supreme Court, namely Lahore High Court’s (LHC) Justice Shahid Waheed; Peshawar High Court (PHC) Chief Justice Qaiser Rasheed Khan; and Sindh High Court’s (SHC) Justice Syed Hasan Azhar Rizvi, Justice Muhammad Shafi Siddiqui and Justice Naimatullah Phulpoto.

Hamid Khan censures JCP for ignoring Justice Minallah; SHCBA calls for strike

Justice Waheed is fourth in the LHC’s seniority list, whereas Justice Rizvi, Justice Siddiqui and Justice Phulpoto are fourth, sixth and seventh, respectively, in the SHC’s seniority line.

The Supreme Court is functioning with 13 judges against the sanctioned strength of 17, whereas the fifth vacancy will occur when Justice Sajjad Ali Shah, also a member of the JCP, retires on Aug 14.

That was the reason why senior puisne Sup­reme Court judge Justice Qazi Faez Isa in his July 26 letter to the CJP regretted that the anticipated vacancy would occur on the retirement of Justice Shah, but he was being called upon to choose his own successor.

“This is unconstitutional,” Justice Isa regretted, insisting that Pakistan was not a kingdom of yore in which kings decided their successors.

Speaking to Geo News, former SCBA president Hamid Khan called for the postponement of today’s JCP session and said ignoring senior judges was “extremely unfair”.

He was particularly critical of ignoring Islamabad High Court (IHC) Chief Justice Athar Minallah’s elevation to the Supreme Court only because “some members and the chairman of the JCP disliked him (Justice Minallah)”. He said it was unfair also because the IHC already had no representation in the Supreme Court.

The PBC-SCBA joint session also reiterated its long-standing demand that the judicial commission should amend its rules to allow nominations for appointments to be initiated by any member of the commission rather than the chief justice alone.

The meeting also demanded that the federal government should immediately frame legislation in terms of articles 175(2) and 191 of the Constitution to regulate the manner of exercising the Supreme Court’s jurisdiction, especially to end the CJP’s sole discretion to form benches, fix cases and initiate suo motu proceedings, and vest the powers in a committee comprising five senior-most apex court judges.

SBC adopts resolution

In a related development, the Sindh Bar Council (SBC) wrote a letter to CJP Bandial and other JCP members and adopted a resolution urging that the upcoming meeting of the judicial commission be postponed and a fresh meeting be convened where only the senior-most judges are considered for appointment to the apex court.

The resolution also expressed serious reservations over the proposed names of high court judges floated before the JCP bypassing more senior judges.

It said the JCP meeting of July 28 had been convened in haste during the vacations when neither senior puisne judge Justice Isa nor Attorney General for Pakistan Ashtar Ausaf was available.

Separately, the Sindh High Court Bar Association (SHCBA) also moved a resolution to call a strike today for ignoring the principle of seniority and failing to devise transparent criteria for appointing judges by the JCP.

Published in Dawn, July 28th, 2022