THERE is clarity, but perhaps not of the kind that Chief Justice of Pakistan Umar Ata Bandial hoped to achieve when he ordered the release of the audio recording of the Judicial Commission of Pakistan’s July 28 meeting. Rifts within the superior judiciary that have existed for some time are no longer a matter of speculation; the recording of the meeting called to discuss the names of potential judges for elevation to the Supreme Court has laid them bare to an unseemly degree. The episode also appears to have only sharpened the difference of opinion among the JCP members who agree with the CJP’s position and those arguing for seniority until objective criteria are framed for elevating judges to the apex court. The hallowed halls of justice are themselves in peril of being tainted by the fallout.

Five JCP members have written to the chief justice — who heads the commission — since the meeting: the most recent is Akhtar Hussain, representative of the Pakistan Bar Council in the JCP. In his four-page letter, he said that while many factors were to blame for the prevailing factionalism, the solution lay only with the CJP, who as head of the legal fraternity could heal the divide by amending JCP rules and overseeing the framing of more objective criteria for judges’ nomination. Mr Hussain also pointed out that the JCP’s deliberations were meant to be confidential, thereby allowing the members to give their opinions frankly and freely, while protecting the reputations of the judges whose names were under discussion. That made it necessary, he reasoned, to consult the commission members before deciding to relax the rules and release the recording. It is difficult to disagree with this view. A candid conversation meant to be held behind closed doors to discuss a matter that has a direct bearing on the quality of justice dispensed by the highest court in the land has been thrown open to all and sundry to comment on and take away from it what they will. Judges about whom less than positive views were expressed at the meeting as well as the JCP members who uttered them both have cause to feel aggrieved.

Howsoever miscalculated the move to release the recording may have been, the chief justice must now look to his legacy. The call for making the process of selecting and elevating judges to the Supreme Court more inclusive and transparent has intensified and become impossible to ignore. It was reiterated time and again in the July 28 meeting as well. Over the years, the apex court through a series of orders and judgements concentrated the power to steer the commission’s proceedings in the person of the CJP. As friction over recent appointments to the Supreme Court illustrates, that dominant role has become untenable. Chief Justice Bandial must lend an ear to his fraternity.

Published in Dawn, August 8th, 2022