• Nominations opposed five to four during ‘heated session’
• SC statement says decision on elevations ‘deferred’
• Justice Isa writes to members, says meeting minutes not dictated by CJP
ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Thursday opposed — by a majority of five to four — a set of four names proposed by Chief Justice of Pakistan (CJP) Umar Ata Bandial for elevation to the Supreme Court, but decided to consider the case of the Peshawar High Court (PHC) chief justice later.
Presided over by CJP Bandial, the meeting was called to consider for elevation to the Supreme Court the names of Chief Justice Qaiser Rasheed Khan of the PHC, Justice Shahid Waheed of the Lahore High Court (LHC) and Justice Syed Hasan Azhar Rizvi, Justice Muhammad Shafi Siddiqui and Justice Naimatullah Phulpoto of the Sindh High Court (SHC).
According to a press note issued by the Supreme Court, the meeting was attended by seven members of JCP in-person while senior puisne judge, Justice Qazi Faez Isa and Attorney General for Pakistan (AGP) Ashtar Ausaf attended via Zoom from Spain and USA, respectively.
The press note said that names of all five judges proposed were considered by the JCP and, after detailed discussion, the chairman proposed that the meeting be deferred to enable the CJP to place additional information and data about those already proposed, and if he deems it appropriate, add more names to the list of for consideration by the JCP.
The proposal to defer the meeting was supported by Justice Ijazul Ahsan, Justice Sajjad Ali Shah, retired Justice Sarmad Jalal Osmany and Attorney General Ashtar Ausaf.
The date of the next meeting will be decided later.
Soon after the meeting, Justice Qazi Faez Isa wrote a letter to the CJP and other members of the commission in which he recalled how he, and four other members, had rejected the names of three junior judges of the Sindh High Court and one junior judge of the Lahore High Court.
In the case of the PHC CJ, it was decided that since he was neither the most senior chief justice, nor the most senior high court judge in the country, his name could be considered if it was placed alongside the CJs of other high courts and most senior judges.
The participants concluded that the Constitution did not permit appointments to ‘anticipated’ vacancies.
Justice Isa’s letter said Chief Justice Umar Bandial did not “dictate the decisions and left the meeting quite abruptly”, followed by Justice Ijazul Ahsan. Therefore, it had now fallen to the acting secretary to draw up the minutes of the decisions taken at the JCP meeting.
This is the first time he is doing so as the secretary is on holiday.
“The eyes of the nation are transfixed on JCP and they have constitutional right to know what was decided. Therefore, the acting secretary should immediately release this decision to the media to end unnecessary speculation and misreporting as the meeting was held behind closed doors.
“It is expected that the minutes will accurately reflect all that transpired,” Justice Isa’s letter said.
An informed source said the nominations were rejected by a majority of five to four during a heated session lasting three hours in which the CJP, Justice Ijazul Ahsan, Justice Sajjad Ali Shah and former judge Justice Sarmad Jalal Osmany voted in favour of the nominees whereas Justice Qazi Faez Isa, Justice Sardar Tariq Masood, the AGP, Law Minister Azam Nazeer Tarar and Akhtar Hussain, the Pakistan Bar Council’s (PBC) representative in the commission, voted against.
Justice Shahid Waheed is fourth on the LHC’s seniority list while Justice Syed Hassan Azhar Rizvi, Justice Muhammad Shafi Siddiqui and Justice Naimatullah Phulphoto are fourth, sixth and seventh on the SHC’s list.
The Supreme Court has 13 judges at present against a sanctioned strength of 17 while the fifth vacancy will occur when Justice Sajjad Ali Shah, a member of the JCP, retires on Aug 14.
“This is unprecedented; never in the past have all the nominations been opposed like this, although on Sept 4, 2021, the nomination of Justice Ayesha Malik was deferred after a four-four split,” observed a member of the PBC.
SCBA hails development
Muhammad Ahsan Bhoon, who heads the Supreme Court Bar Association (SCBA), was quick to appreciate the development, saying the government had responded in a positive manner and on merit.
“I am grateful to those JCP members who rejected the nomination since they supported the joint resolution in which both PBC and SCBA had called for strict adherence to the rule of law and the principle of seniority while considering the elevation of junior judges to the Supreme Court was in violation of the seniority principle,” Mr Bhoon pleaded.
The source explained that the majority at the JCP meeting stressed that the seniority principle should be strictly followed for elevation of judges to the apex court.
All members of the commission suggested that Islamabad High Court Chief Justice Athar Minallah be considered for elevation to the Supreme Court.
Referring to the nomination of Justice Shahid Waheed of the Lahore High Court, the JCP rejected the case since seven judges from Punjab had already been elevated to the Supreme Court.
Referring to the SHC, the majority members argued that if Chief Justice Ahmed Ali Sheikh was not competent for elevation, he should be prosecuted by invoking Article 209 of the Constitution. Otherwise, they added, he should be elevated to the apex court as he is the most senior high court judge in the country.
Justice Sheikh had declined to be appointed as ad hoc judge of the Supreme Court after the JCP decided on Aug 10 last year to appoint him for one year provided he agreed.
The majority of JCP members were of the view that Justice Irfan Saadat Khan and Justice Aqeel Ahmed Abbasi of SHC were as competent as the judges whose names have been proposed for elevation.
About the nomination of Peshawar High Court’s chief justice, the majority was of the view that consideration should be deferred since Justice Roohul Amin Khan was junior to Justice Qaiser Rasheed Khan by just one day, therefore, his name should also be considered.
Published in Dawn, July 29th, 2022