THE Peshawar High Court Chief Justice, Ejaz Afzal Khan, has recently been recommended by the Judicial Commission for elevation to the Supreme Court. The commission in its meeting on Oct 27 headed by Supreme Court Chief Justice Iftikhar Mohammad Chaudhry also recommended appointment of a senior judge of the high court, Justice Dost Mohammad Khan, as the next chief justice.

Under Article 175A of the Constitution these recommendations will now be considered by the Parliamentary Committee which has to confirm these names within 14 days failing which the nomination should be deemed to have been confirmed. The committee should send the name of the nominee confirmed by it to the prime minister who shall forward the same to the president for appointment.

Both Chief Justice Ejaz Afzal Khan and Justice Dost Mohammad Khan are popular judges among the legal circles as they were among four of the PHC judges who had not taken oath under the Provisional Constitution Order following the imposition of emergency by General (retd) Pervez Musharraf on Nov 3, 2007. The then chief justice of the high court, Justice Tariq Pervez, and the most senior judge, Shahjehan Khan Yousafzai, had also not taken oath under the PCO.

Justice Ejaz Afzal Khan was appointed the chief justice on Oct 20, 2009. If he is elevated to the apex court, the number of judges there from Khyber Pakhtunkhwa will rise to four. The three other serving judges in the Supreme Court from Khyber Pakhtunkhwa are Justice Mian Shakirullah Jan, Justice Nasir Mulk and Justice Tariq Pervez Khan.

The recommended judge, Justice Dost Mohammad Khan, hailing from the southern district of Bannu, was appointed as additional judge of the high court in Sept 2002 and was confirmed after a year. He is known for taking keen interest in cases related to human rights, governance, public grievances, etc.

Popular for his forthright observations, which he often gives while conducting proceedings in different cases, Justice Dost Mohammad never minces words when it comes to the performance of government departments. During last couple of years, while heading different benches, he had delivered judgments in several cases of public interest including flour shortage, health sector reforms, electricity and gas loadshedding, human rights, etc.

Once appointed high court CJ, Justice Dost Mohammad will have to address different challenges. The cases of “missing persons” have become a regular phenomenon in the high court with the intelligence agencies very rarely cooperating with the court. Clearing the backlog of cases in the high court, stated to be over 20,000, is also a gigantic task which has to be addressed on priority basis.

Furthermore, the present chief justice has taken several steps for eradication of corruption from subordinate judiciary. That campaign has to be maintained so that checks on subordinate judicial officials remain in place.

The recent recommendations have also given birth to a controversy as Justice Shahjehan Khan Yousafzai has been superseded for the second consecutive time. No reason has so far been given as to why Justice Yousafzai has not been considered fit for the post of chief justice. He was appointed as an additional judge in 1997 and confirmed as a judge of the high court in 1998.

Previously, when he was superseded the 18th Amendment was not passed and the mechanism for appointment of chief justice and judges was different as at that time there was no judicial commission.

Legal circles believe that in the light of the famous Supreme Court judgment in Al-Jehad Trust case popularly known as judges case of 1996, the president/executive could not ignore most senior judge for appointment as the chief justice in the absence of any concrete and valid reason.

“That in view of the relevant provisions of the Constitution and established conventions/practices, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to be appointment as such in the court concerned,” states the said verdict which was delivered by a full bench headed by then chief justice Sajjad Ali Shah.