Judges' appointment to SC: JCP rejects Chief Justice Bandial's nominations

The Judicial Commission of Pakistan (JCP) on Thursday rejected the names of five high court judges who were nominated by the Chief Justice of Pakistan (CJP) Umar Ata Bandial for their elevation to the Supreme court (SC), Aaj News reported.

Reportedly, several members of the commission expressed concerns that due process for the appointments was not followed.

Four members of the commission voted in favour of the nominees while five members opposed the appointments. Justice Qazi Faez Isa and the attorney general of Pakistan attended the meeting via video link.

Appointment of five apex court judges: Justice Isa objects to summoning of JCP meeting

The names of Chief Justice Peshawar High Court (PHC) Qaiser Rashid Khan, Sindh High Court (SHC) judges – Justice Syed Hasan Azhar Rizvi, Justice Muhammad Shafi Siddiqui, Justice Naimatullah Phulpoto, and Justice Shahid Waheed of Lahore High Court (LHC) were being considered to fill the existing vacancies in today's JCP meeting.

JCP's mandate

The JCP is responsible for approving the appointment of judges to the Supreme Court and five high courts of the country. The CJP heads the commission as its chairperson.

The commission comprises four senior-most judges of the SC, the former judge, a federal law minister, the attorney general for Pakistan, and a senior advocate nominated by the Pakistan Bar Council (PBC).

Controversy over JCP meeting

The meeting of JCP has become controversial as the legal fraternity accuses CJP of not following due process.

Earlier this week, Justice Qazi Faez Isa, one of the senior-most judges of the SC, raised objections over the summoning of a JCP meeting on July 28.

In a five-page letter to the JCP chairman and other members, Justice Isa requested that the JCP meeting should be postponed, arguing that senior judges of the SC should meet first to consider how to proceed further in the matter.

Justice Faez wrote: “If chief justices and senior puisne judges of the High Courts are to be bypassed then to first develop for consideration of the JCP criteria for nominees since the then senior most judge failed to accomplish the task assigned to him”.

Justice Isa said that the CJ wants to “rush through a most delicate matter in a very questionable manner. He wants 2,347 pages of documents to be examined in a week. However, I have not even been provided with these documents. Instead, an attempt to Whatsapp them was made, but only the first document of 14 pages I accessed and could read. Regarding the others my phone states ‘storage full’.

Appointment of junior judges to SC: Bar councils object to nominations

“A factor which the CJ mentions as a disqualifying factor for being chosen is the delay in writing judgments. High Courts judges have far more work assigned to them as compared to SC judges. If this is a criterion, and there is nothing wrong with it, let us also self-reflect and do a little self-accountability. The CJ should order a survey of SC judges to ascertain (1) how long the CJ and each judge takes on average to write judgments, (2) how many cases are disposed of through “short orders”, (3) how long after does it take for the detailed reasons to come and (4) how many are still awaited. I may mention that the malaise of “short orders” is a novelty; Article 189 of the Constitution mentions “decisions” of the SC, “short orders” are an invention not sanctioned by the Constitution,” the letter stated.

“The kind of power exercised by the CJ is not permitted by the Constitution. The CJ arbitrarily and unilaterally decided: (1) the number of judges to be appointed, (2) the High Court from which they should be taken, (3) considered judges up to a particular number, (4) gave his preemptive opinion on who the best candidates are, (5) put up for consideration to the JCP only his preselected candidates, (6) formulated a questionnaire soliciting information, which included compelling serving judges to disclose their financials (ironically the CJ refused to do so himself when the SC received a written request for information pursuant to Article 19A of the Constitution) and (7) sought medical information in derogation of the constitutional protection of privacy and dignity,” added the letter.

Bar councils oppose the meeting

Similarly, the leaderships of the top Bar councils and the Associations of the Supreme Court, and the high courts have expressed grave reservations over the nomination for the appointment of junior judges to the Supreme Court in violation of the seniority principle.

A joint meeting of the representatives of the Supreme Court Bar Association (SCBA), High Court Bar Associations of all the provinces, the Pakistan Bar Council (PBC) and the Provincial Bar Councils and members/nominees of Bar Councils to the JCP was held on Wednesday, in this regard in the Supreme Court building.

The House wanted strict adherence to the Rule of Law and Principle of Seniority, therefore, expressed displeasure over the nominations for the appointment of junior judges to the Supreme Court and termed it a violation of the seniority principle; hence disapproved it.

The meeting reiterated its long-standing demand that the JCP immediately amend its Rules to allow nominations for judicial appointments to be initiated by any member of the Judicial Commission rather than the chief justice alone (which is even otherwise violative of Article 175-A of the Constitution) and, moreover, to frame fair, transparent and objective criteria and procedures to gauge the suitability of prospective appointees.

It demanded amendments in Articles 175-A and 209 of the Constitution, in order to unify the forum for appointment and removal of judges and to make it more inclusive and comprising equal representation of all the stakeholders, ie, Judges, Bar, Executive and the Parliament. Moreover, the House demanded that Article 184 (3) of the Constitution be amended in order to provide one right of appeal.