CJ say let’s examine the possibility of reducing criteria into a firm basis for assessing candidates; law minister stresses need for framing rules to make JCP proceedings transparent to enjoy trust of stakeholders and public at large; attorney general says no litmus test exists for evaluating nominations; advises commission to make rule at the earliest; Pakistan Bar’s representative for adhering to principle of seniority, capability Last instalment
Ashtar Ausaf (speaking in Urdu): (After thanking meeting participants for inquiring after his health). It’s very much a matter of national importance. It is a huge responsibility for all of us. Nominations for the Supreme Court (SC) or high courts have impact on future as it is for the apex court to interpret the constitution. Since I have not seen the papers, I am unable to speak on something that I have not seen. However, transparency has been discussed as always. I would like to state that we need the entire data for an informed decision. I am happy on whatever data is written, and I would compliment Sardar Sahib for doing such a good work. I have some ambiguity in my mind on the available material regarding how would you judge this entire matter. We don’t have a litmus test…. and what we can infer from their decisions that we have read. …….. We should keep in view what SC says about them. If there are any comments, then this aspect should be written in rules. Second important thing is to confine ourselves to the existing way….. Bar’s input is very important, and that is why it has been given a role in the constitution. As far as recommendation is concerned, …. there should be a box, which is missing, about what the SC said about their judgements that should be ticked. Usmani Sahib’s opinion is alright but I would say don’t rush, rather make haste in framing rules to help us make informed decision. We should consider Justice Athar Minallah. Similarly we are looking at Qaiser Rasheed sahib. We have to look at the remaining data also. We should also consider what amount of time the nominee would have to be part of the apex court. There are only three years that are not sufficient. Before elevating someone to the SC, we need to see the nominees for the SC have capability so that they can remain part of the court for long. I request you to defer these matters for now and make rules fast. If we have boxes on these rules that we can tick, then we would not have debates on many things and we would be able to take an informed decision in an active manner. I thank you all for giving me an opportunity to share my ideas with you.
Akhtar Hussain (speaking in Urdu): It is my fifth year, and third in the commission. All bar councils and associations have been asking for amendments to rules, adherence to the seniority principle, besides standard….Then a meeting of rules committee took place…. After that, I understand that capability, integrity, reputation…. should be included in detail in the rules; since when were are talking about rules, they are not only for the SC, but also for the high courts, lawyers in high courts… And there is district judiciary also… We would again request the commission and the chairman sahib that we should hasten to make rules. Rules committee was set up many times but no work could be done. As far as elevation of judge in Sindh is concerned, if the notification of Sindh High Court (SHC) chief justice is still of an ad hoc judge, it cannot be said that he lacks capability. If he refuses to be a permanent judge, then I agree with Sardar Sahib that he should be proceeded against. From here start issues about SHC. These things have been going on many years in our high court. All this depends on leadership. If the chief justice has command and is onboard, then high court functioning would be better. Sir, I received a letter yesterday. Today it is in newspaper. A civil judge has writer this seven or eight-page letter. He has done a good analysis of judicial functions. We have so many faults. We have to fix these problems together. In comparing judgements of Irfan Saadat Sahib and Phulpoto Sahib, I find Irfan Saadat Sahib ahead. There are 11 good judgements of Phulpoto Sahib — eight are about criminal side, two on service matters of two judicial officers and one on a petition about ECL…. Now what is his work …. that he has bypassed everyone. I find Irfan Saadat Sahib suitable in every aspect. Our law minister has talked about personality of Phulpoto Sahib…. In no what I see that Phulpoto Sahib should be elevated to the SC. Aqeel Abbasi Sahib is a capable judge and I have worked with him as a lawyer. Justice Sarmad Usmani Sahib that when seniority is ignored once, twice, or thrice, it would create bitterness in his behavior. Even now it is being said that they would be considered in future. When they would be considered while they are being ignored for years despite in absence of any doubt on their capability. So I understand that decision should be made on the basis of capability and seniority. On Lahore High Court, I concur with the law minister on number one and two….. and there is no doubt on their reputation and integrity. I support them. What has been said about Qaiser Rasheed Sahib is right. Next two judges have no difference in their service and seniority, but I do not support them given the recent nominations. It has been rightly stated about the LHC that it is not our provincial quota. But if you look at past, there have been seven judges from the LHC, five from SHC, two from PHC, and two from Balochistan High Court, so someone should be from Islamabad High Court. I understand that for the time being we should take judges from Islamabad High Court instead of LHC.
The condition of the dead body because of the death, during between injury and the death and between death and postmortem and can only be considered as the supportive evidence but not as the corroborative piece of evidence. But almost in the judgments the nominee judge has observed the same as the corroborative piece of evidence for conviction. There are many other things if I started to read then you will be in tension. So I don’t see any of the principles in these judgments. On the other hand, it was said that when Shehzad Gheba was told that we are not making him because of the reason we just gave are the same that his judgements are average judgements. There is a good thing about the judges of the Lahore High Court that they discuss the piece of evidence; this is the real meaning of the re-appraisals we can say it in the Supreme Court that it’s okay and both courts have received and we are not going to say it.
So almost this is what he said his reasoning against the settled principle of appraisals and re-appraisals of the evidence what is even more worrying is that he adamantly refuses to read or follow our thirty-year-old Supreme Court precedent thus contravene Article 189 of the Constitution but he has been nominated, Ok.
Information so far I have gathered from different corners of Sindh that his integrity is also questionable, whereas the reason for his appointment given in the letter dated 20th July 2022 is silent regarding his integrity. 7th is the position he got of Mr Justice Shafi Siddiqi information gathered from the lawyers in the relevant quarters from Sindh is also found questionable integrity and the reasonable appointment are also silent regarding his good integrity then information also reveals that both are accessible. According to the bar and the people from which I have considered because they have said that these are good people and we have no other sources, we would gather the information from there in Sindh and we can ask from very few. The integrity along with the seniority is the prime consideration for the appointment as the judge of the Supreme Court. But the reasoning given the head of these nominee judge is silent regarding their integrity. It is also circumstance that nobody has raised his finger toward the integrity of Mr Justice Irfan Saddat and Aqeel Ahmed Abbasi. So far as the temperament of Mr Justice Aqeel Ahmed Abbasi is concerned the same is not supported from any corner of the legal fraternity and this is not sufficient, who works appreciably and being respected in legal fraternity due to his integrity and competence said temperament only because of the temperament debarring any judge but looking at the Supreme Court there are many occasions that our judges lose the temperament on some content of the lawyers. But dismissing him because of this don’t nominate him. Just because of this otherwise everything was equal; he was competent and he was senior too but NO. Look, Sir, you didn’t give us the comparative data of Qaiser Rasheed so we could look onto it and about Ameer Bhatti they say he is a good judge and my brother said that we need hardcore civil judge Ameer Bhatti, who worked in Multan district judiciary for decades; he had so many hardcore experience on the civil side, revenue side, every side; he could be the good addition to this institution for that purpose and instead of considering Phulpoto for the criminal case you should look that here are very few criminal cases but there are civil cases in thousands of cases. The real cases are those who should be completed and finished. According to Ijazul Ahsan, there are only few criminal cases. So that is why I think he is the most competent and most suitable person.
I with all reservations always have been in the seniority that the seniority principle whenever we violate doesn’t work good for this country. I with all above reservations am not inclined to approve for the proposal for the appointment of Mr Justice Syed Hassan Azhar Rizvi, Mohammad Shafi Siddiqi, Naimatullah Phulpoto, falling at the serial number 4, 6 and 7 on the seniority list respectably in the High Court of Sindh and Mr Justice Shahid Waheed falling at serial number 4 of the seniority list in the Lahore High Court, as we have been provided the comparative record and I said on the above comparative discussion I am confident that in view of the seniority principle integrity and competency Mr Justice Mohammad Ameer Bhatti is suitable for the appointment as the judge of the Supreme Court on the vacant seat. Likewise as the principle of seniority Mr Justice Ahmed Ali Sheikh keeping in view his vast experience as the CJ of the HC of Sindh and earlier consideration for the appointment as an ad hoc judge of the Supreme Court he is also suitable for his elevation as the judge of the Supreme Court of Pakistan. If he is proceeded under Article 206, then of course Mr Justice Irfan Sadaat Khan and Aqeel Ahmed Abbasi are the most suitable judges to be appointed as the judges in the Supreme Court of Pakistan and I approve their names. As such so far Mr Justice Qaiser Rasheed Khan is concerned although he is the most senior judge of the Peshawar HC but surprisingly no comparative data of other two judges has been provided, so that a comparison could be made regarding their competency and integrity besides the seniority, so in my humble view his matter may be deferred. Thank you very much Sir, Chief Justice Umar Ata Bandial: Justice Tariq Masood your analysis Is very illuminating and all that you have said needs to be dealt with during our discussion and will be answered.
Justice Qazi Faez Isa: thank you very much. I have informed you of my thoughts by note dated: 25th July 2022 and I would request that the note would be made part of the minutes. Another thing which I want to add that some novelty method of things has evolved and I have zero confidence in minutes that are recorded previously: the minutes which were recorded put for the next meeting also accorded for the confirmation arbitrary put a stop to which I have raised in writings a number of times that the minutes were wrongly recorded. This was withheld from me.
Justice Qazi Faez Isa: The senior most judge, the member of Judicial Commission of Pakistan, so the accuracy of the recording of the minutes. Why the separation of the truth? I would go one step further why are we keeping the public out? Article 19 A of the Constitution has been enacted; it gives the right of information to everyone. My experience has been, you can see it’s behind the closed doors it is too because one does not truths to converge and to suppress them so I would like to request that the minutes is to be resumed the procedure before for the minutes for the confirmation and what by the end of the day that 7, 8, 9 and 13 people decide something and one gentleman who has the higher respect may have not paid attention and may have misunderstood something and record some thing that becomes the minutes of the meeting. This practice is not turbulent in limited companies and in any other meeting procedures and was always the practice of this court which is not the good thing that we used to abide by. So I would request my eyes were opened by the dangers provided by Sardar Sahib now. If we all have been involved in the process of the inception to those have come to this to expose and I am sure that the CJ was misled to expose, will any head roll? For I mean if Sardar Sahib doesn’t take it upon himself to analyze the truth I don’t know that I could speak for everyone and all to acknowledge and I had written for the postponement of my request was not considered. I know that the Chief Justice is very busy man and so it must have slipped from his mind to politely respond to me which he did not do but I am grateful that he is giving me this opportunity not to holiday too much. I have already expressed my views on the numbers of issues which have not been responded to, now since the number of very honorable members, Will request that I will speak last also because for added reason the 2 and the half documents that I have never received so I would like to express my views at the end, thank you very much.
Justice Umar Ata Bandial: Think Justice Qazi Faez Isa, you should make your statement now because I will be doing the concluding remarks.
Justice Qazi Faez Isa: With the greater of the respect, I not come here to make the statements. I came here to learn from you, form Sarmad Sahib, from Shah Sahib, from the law minister, from the attorney journal. I have come to learn will after learning will express my views. I don’t think that you can force me to speak. So why are you depriving me of this opportunity? All I am saying that I want to hear from you all and express my views that I have good reasons that I don’t have the benefits of the 2 and half thousand documents that you have prepared and put together all the other members have is it unfair. I would hear your views on some serious points raised by Sardar Sahib and if you can put them to rest which can change my opinion, so Sir your golden work eagerly awaited, Sir. Thank you.
Chief Justice Umar Ata Bandial: So may I now request the law minister to kindly express his views.
Law Minister Azam Nazeer Tarar: Thank you very much your honorable, first of all I congratulate Mr Sajjad Ali Shah for joining the first meeting and many prayers for Attorney General Ashtar Ausaf for his quick recovery. Sir, I have been enlightened by the material sent to me by the commission as well as the views expressed by honorable members of the commission before I comment upon the nominations would like to place on record my views regarding the principles of seniority and fitness for the elevations of the candidates and all of us know that this being apex court of the country and there is no other court who can actually sit over the Supreme Court for reversing or changing or setting aside orders, then correcting the wrongs if any committed by the court. Sir, we expect that we should always go for the best of the best, so while saying so would suggest that we have to actually formulate criteria and then to codify it in order to streamline the rules and the criteria that at what juncture we should bypass or ignore the seniority principle and what should be the valid reasons for ignoring the same. Mr Chairman, unless or until we actually with the open heart we sit together and we frame these rules we would not be able to bring transparency to these proceedings and in that eventuality we will be losing the trust of the stake holders and the public at large. Sir, we have seen in the past years that the bar bodies, the bar councils and the bar associations that there has to be a codified formula for the functioning of the commission and the criteria for the elevations may the high courts and the more particularly Sir, the Supreme Court of Pakistan. I am impressed the way the honorable chairman tried to bring everything on the record and gave us the opportunity to analyze the material and then to decide and as Justice Sardar Tarqi Masood, Sir, then we look into these things; many confusions and the questions are rising in our minds when I have gone through the material and the judgements and the data provided by the Judicial Commission of Pakistan to me. Sir, I am grateful that this time I received the material well before the meeting and I also appreciate and I am grateful for the decision taken by the commission and more particular by the chairman that at least seven days’ notice should be given in the meeting for the appointment. Sir, it’s very noble duty and we have to put all efforts to ensure that most suitable, competent and spotless candidates should be considered and then appointed for these high offices. Coming to the candidates and their eligibility, starting from the first nominee Mr Qiser Rasheed, the honorable Chief Justice of the Peshawar High Court. Sir, I agree with the opinion expressed by Sardar Tariq Masood and this would have been the in fitness of the things and it would have been extremely helpful for all of us and if the rest of the two judges or three judges, like judge, the senior puisne judge and the judge at number two in the number three in the seniority, their credentials and judgements should also be placed so we are actually bypassing the principles of the seniority in Punjab and Sindh and speaking for myself I know both the gentlemen Justice Qaiser Rasheed and Justice Rooh ul Amin, who is the senior puisne judge there. Incidentally, both were honorable members of the Pakistan Bar Council in 2015 tenure when I first was elected for that office and I had an honor, an opportunity to work with both of them so as a lawyer I feel that they were dignified person but when I compare their working in the council and their input in the issues coming to the legal education committees and the disciplinary proceedings and even discussions on the national and the legal issues I have found much or better clarity of thoughts in Mr Justice Rooh ul Amin as then was as comparing to justice Qaiser Rasheed. I have never appeared before both of them but when I spoke to my colleagues at the Peshawar High Court and their assessments first of all there is one interesting fact may I bring before this forum that Mr Qaiser Rasheed and Rooh ul Amin were elevated in the same batch. I believe and as of there was any difference of belief as now their seniority number one and number two but their date of the retirement with only 24 hours difference, so if one gentlemen would retiring on 21st march 2022 the honorable judge would retire on the next day. Even the honorable judge at number three would also retire in the same week. So for all the same reason I would suggest that we should examine the credentials of all three gentlemen because they also enjoy same kind of seniority and experience on the bench and experience of life is almost the same so it would be extremely helpful if we get material credentials, their judgements, their comparative work for the consideration for all three gentlemen and till that time we defer the appointment from the Peshawar High Court from Justice Qaiser Rasheed. Now coming to the respect, I have never worked nor I have even appeared for the bench at the Sindh High Court, so I would confine myself only to the material and its analysis and if that can be compared and for the rest of the things their integrity or their reputation in the bar and about their case I would prefer to rely upon the opinion of Mr Justice Akhtar Hussain.
Going down to Justice Phalphoto, I have also been criminal side practitioner for many years and I being appearing in the criminal matters gone through the judgments. There are serious defects and deviation from the standard principle of criminal law and more show dependence on the record instead of applying mind and giving reasons for decision which is actually the job of a judge and the good judge always, you don’t need to sit on the court of appeal, the record is also part of the case. It is before you; he reproduces all, where necessary. But I have seen he is writing long judgments relying upon on the record, then abruptly writing few lines that the actual account fully supports or is not of the qualities which should be believed, why should not be believed, one has to give reason to satisfy the other side. Some people I spoke to said, sorry for it, he has weak personality and his decision making is also not strong. He is also confused about social relations. We need clarity of thought or strong-nerved people in the apex court. I think it is better if his nomination is disapproved, so that best staff reached the court. Coming to Lahore, since I practiced most of the time I would say I know the gentlemen who has been nominated; we have been appearing together, we have been working together in many cases. He is a through gentleman, very reasonable, finest human being, rather I would say he was a good lawyer and a good judge. I did not frequently appear before him because he most of the time deals with civil or constitutional matters or other miscellaneous work but being frequently appearing for two honorable judges or rather 3 honorable judges senior to him, whose date has also been shared and whose judgments also being shared them. Speaking of my-self, I given the chance to give one recommendation of nomination, I would suggest that the Supreme Court right now leads the judges or at least a judge who has experience on the criminal side as Justice Ijazul Ahsan. He said I would simply add one more person to this right now naming two honorable judges from the Lahore High Court, one is luckily sitting with us and the another gentleman, Justice Naqvi, they have been practicing on the criminal side, they have been dealing massively I would say with the criminal matter and turned out to be good judges at the high court level MashahAllah, now at the Supreme Court. Keeping in view the number of pending cases and I would say the comparatively less criminal side judges in the Supreme Court, I would very respectfully submit that this nomination please be reconsidered and Mr Justice Shahzad Ahmed Khan may be considered to be elevated as judge of Supreme Court. On the appellate side, I have been appearing for him for good 7, 8 years with all certainty, I can say that if no more I have conducted at least 90 to 100 hundred death sentence and life imprisonment appeals before him. I always found him to be decent and reasonable, open to listening. He has written reasonable judgments, always very strong person and with respect to writing skills or the qualities are good gifted sometimes, extremely and extraordinary good expression.
Sir, the system will work if institutions are respected. The executive has its role since the beginning. When we were young, there were not such things. The governor used to consult the chief justice of high courts concerned. The Prime Minister would propose the name of the Chief Justice of Pakistan and the President appointed him. We changed it; we gave a role to the opposition with the government.
By summing up with respect I would state that right now in view of the analysis made by Mr Justice Sardar Tairq Masood after listening to honorable judges, I do support this nomination. I would request that the rules may kindly be framed determining the principle of seniority and the functioning of the Judicial Commission of Pakistan. Respectfully, I would say Justice Athar Minallah is also very honorable and experienced judge. We have seen many judges from the Islamabad High Court.
Ashtar Ausaf: Thank you for your messages. I could not see the papers on nominations. It is necessary for an informed decision that we have complete data before us. I think what is missing in the recommendations is that what judges of the Supreme Court said about their decisions. Usnami Sahib’s opinion is right but I would say do not rush to it. I think we should make rules first and if all boxes are ticked, then we would not have to debate it.
Akhtar Hussain: Bar councils have been calling for changes in rules and adherence to seniority principles besides competence and standard. I also understand competence and integrity. The rules should cover all things. They should not only be for Supreme Court judges but also for High Court judges and their lawyers. There is still a notification of the Sindh High Court Chief Justice as ad hoc judge. It cannot be said he has no ability. If he refuses his elevation, I agree with Sardar Sahib that action should be taken against him. Issues start here in the Sindh High Court. These issues have existed in our courts for years. If the Chief Justice has command and is on board, the High Court’s functioning will improve. A civil judge has written a goo letter. He has analysed court function very well. Flaws have been created in our system and we all have to remove them. If judgements are compared, Justice Irfan Saadat is far better than Justice Phulpoto. I do not favour Justice Phulpoto in the Supreme Court. Justice Aqeel Abbasi is a competent judge. He is a nice person. As Justice Usmani said if a person was ignored for many times, his attitude would become bitter. I think a decision should be made keeping in view competence and seniority. As regards the Lahore High Court, I agree with the law minister. I support them. I also agree what was said about Justice Qaiser Rasheed. There is no difference between the seniority of the next two judges. However, I do not support newly-made nominations. It was rightly said it was not our provincial quota. There have been seven judges from the Lahore High Court, five from the Sindh High Court and two each from the Peshawar High Court and the Balochistan High Court. When there are already seven judges from the Lahore High Court, we should take judges from the Islamabad High Court. I would like to thank all the members of the Commission for giving their valuable thoughts.
Chief Justice Umar Ata Bandial: I would have requested Justice Faiz Isa to express his thoughts but he doesn’t want to share them till I’ve spoken out of courtesy and Justice Faiz Isa I’ll say something now what if you have something that requires my input I would then respond to that. The first thing that I can gather from our discussion today is that Justice Tariq Masood and Justice Sarmad Usmani are both of the view that Mr. Phulpoto writes average judgments. This view appears to be shared by Mr. Azam Nazir Tarar
I respect what you said. We are talking about the high court judge. And we have to respect their sentiments also in the way they are treated just like Akhtar Hussain and Justice Sarmad Usmani have spoken about how the temperament of Justice Akeel Abbasi may have been affected by the events that have taken place in the recent past. In the same way, we must always remember that whilst treating judges, we must extend them courtesy and respect. Phulpoto Sahib is a judge at serial number seven of the Sindh High Court; he is doing good work; he did not come to us for recommending him; it is on my own inquiries that I selected his name, so if not today, if tomorrow he’s good he’ll come otherwise there are nine people sitting here they will again analyze his work and come to a conclusion.
They’re not approved. There is nothing in between and the second thing my brother says you can withdraw which decision is being made. The majority has to make the decisions. Even they put the name of Justice Ayesha. And it was not approved by the Commission. That must be written.
That is yeah, it has not been approved. We’ll keep that in mind. You feel very strongly about this, because you did the same thing when we had the set the same thing when we had the same High Court elevations in mind under consideration. And I understand your point of view, you are concerned that when someone is rejected, then you should not come up again; must take with respect other names, the suggestion which appears to have been made is that we should settle the rules. And thereafter take up these elevations. So on those names, I think that there is no serious objection right now on a one on one basis. And there is, on the other hand, a suggestion that we should consider some other learner judges who have been mentioned during the discussion on account of their competence and capability and so forth. Integrity being the first for elevation or for appointment to the Supreme Court. So in relation to the remaining judges, that I’ve judged that I proposed. I would say that let’s defer this meeting and examine the possibility of reducing our criteria into a firm basis for assessing candidates. The only request in this behalf I would make to you is that when I was sitting with Mr. Akhtar Hussain and Justice Sarmad Usmani, the attorney general at that time, we had a fruitful discussion. And these were the four points that emerged, which have now been treated by me as the ruling criteria. In addition to that, the consideration that we should assess the candidates on a seniority basis now, this will only happen in the Supreme Court, because the high courts are not based on seniority, except for the district judge, district court judges, district judiciary judges. For the Supreme Court, we should go in accordance with seniority. Now I have tried to subscribe that principle in making my proposals. I’ve tried to give reasons favoring the candidates I have recommended and the learner judges who have been bypassed, the difficulty I was facing, and this I want to share particularly with Sardar Tariq Masood, Sir, because he has been very vociferous about this. And so also Mr. Akhtar Hussain has also voiced the feeling of the bar. The difficulty is that once you have the criteria, you cannot turn it into an objective thing. Many of our considerations are subjective. In terms of integrity, I think all of us agree that there should be zero tolerance. Any judge of any quality, however, superior cannot be tolerated, unless he is pure and honest. So on integrity, we don’t have a problem. On competence, we already have different views about different sizes. We have to be very careful when we start expressing our views on judgments. One, and number two, we have to keep in mind, the kind of work we have in the Supreme Court. Seniority in the High Court is on account of their induction. The appointment to the Supreme Court is on account of their excellence in all different attributes that are required in a judge of the Supreme Court. The four, attributes may be the minimum, or they may have other shades which we can add. But at the moment, the important thing is we should bring the finest material to the Supreme Court as Mr. Tarar in this regard. It is also very important to keep in mind the kind of work that is required in the Supreme Court. For instance, you would be amused to know that there are 6,823 civil matters arising out of regular first appeals, second appeals and civil revisions 6,800. On the other hand, there are 10,118 cases pertaining to criminal matters, excluding NAB cases and bail applications. In 2019, we were informed that the criminal cases in the Supreme Court have ended and they have been finished. No pending case. Actually, what was stated was about the Criminal Appeals that were pending, but we have thousands of criminal petitions that are still pending and Mr. Tarar is right in saying that we must look for a judge with criminal law specialty. Now, the point is that you have to keep in mind the complexion of society.
And that was one of the factors I kept in mind. Number two, we want a gentleman who can be a good support for a senior judge, because if someone is coming for three years or four years, we have judges who can lead the bench but they need support. What has transpired today is that persons amongst members of the bench at the Commission who are familiar with criminal law, they have opined that the quality of appreciation of law as well as record and evidence judgments is very average. Now, my understanding from my conversations with people who were dealing with them as advocates or as judges. But I respect that. And so I think, to that extent, we should go by the opinion, insofar as the rest of your desires or wishes are concerned. Please understand that from day one, we cannot lay down something and then discover that it’s a straitjacket, it is constraining us. It is far better to discuss things like this. For instance, in the Supreme Court, we decide questions of law, in constitutional matters in civil matters, complicated questions of law, complicated questions of, for instance, tax, regulatory matters that come before us. And we are resolving those issues. So we need judges who have that capacity to interpret the law. One, we need judges who have capacity to deal with pure civil law. So we have to make a mix. And at the same time, observe the kind of ratio that has been in practice in the Supreme Court for representation from different provinces. In 1997, the number of judges and Supreme Court’s number of Judges Act 1997, laid down that there will be a chief justice plus 16 judges. Now I was looking at the chart that I have that to start with in 1972, we only had 13 judges. The first time we had 17 judges was a few months later, but then again it fell down. It fell down to 12 in 2000. And then it rose back to 17. The ratio as Mr. Akhtar Hussain just mentioned, and I showed him this chart for Sindh is mostly five judges, and for Punjab, it is mostly seven, and even eight judges. At times, we have had eight judges, one of them being an ad hoc judge. Baluchistan has mostly had one or two and in the year 2009 until the year 2011, we’ve had three judges from Baluchistan. But back to one in 2011 and 2013 and 14, for some reason. So the figure has been varying, but there is a certain ratio to which the number would come back. I want you gentlemen to understand that instead of treating this thing as one unity, we must respect the provincial entitlements. This has been done as a convention by the Supreme Court. So on that basis, what I suggest is we should be thinking of increasing the number. I have been I’ve been thinking about this. And if you gentlemen agree, little endorse my point of view, and I can approach the government for legislation for the amendment to the Act so that we can have a couple of more judges; this will give us more freedom. And in any case with 50,000 cases pending, we need more work to be done, which requires more grants. So that’s the other thing. What I would request you that putting down things in rules immediately is a difficult thing. It’s not that easy. If we sit down and start analyzing the different facets of a judge’s character; his disposition, his work and so forth, we might with the time with experience be able to refine that today. I’ve seen that the analysis of judgments by Justice Tariq is excellent. But incidentally, I have done the same analysis. And I’ll just give you the figures. I’ll just give you the figures, that how many. The data that you have, from the data provided by the learned judges, and these are judges, all the judges from the Supreme Court, and all the judges from the Lower Courts, but obviously only one judge from the high court. Sir, one of the lowest figures for reversal of judgments by the Supreme Court is for Syed Hassan Raza Rizvi. He has had the finest record in terms of judgments. Mr. Nadeem Akhtar, who is a very fine judge, 15.8% of his judgments were reversed, and I’m basing it on the written data provided by him. If I go to Phulpoto, it is 18%. Shahid Wahid where he is 7%. But when I look at the result of Shujat Ali Khan, it is less, but you look at his work, what is the diversity, most of his work is in red petitions. He’s deciding rent matters in it petitions, family matters and writ petitions. The main thing is the core work lies in appeals or revisions, he hasn’t done that. He’s never worked really on the civil side. So what we do today is, let me request all of you to apply the same criteria. If you need more data, I’ll bring the data. But if you connect it with the framing of rules that will take time, we will be short of five judges next month. And we have 50,000 cases to decide. My request for you, gentlemen, is to apply your mind the way you have applied today. So that we make positive progress, when we evaluate the next candidates, give me any more criteria, any more data that you want, I’ll put it together. And you know, the great thing which I must inform you about is that on account of criticism that our registrar has faced, he has gone on leave. And he’s told me, “Sir, I’m a great 22 officer. I’ve had a good career. I can’t work in these conditions.” What is the result? Sir Tariq Masood, I have written all this material. I had no assistance. So we have to work as a team. And we have to build our team strengthen. And that means whatever we do it must have a certain degree of coordination and understanding. Imagine the kind of proceedings we’ve had today. And what we did on 28th of June, for five hours. I’m so grateful to each one of you for being focused, and for being so clear in your formulations and statements. So with your consent, gentlemen, let’s say goodbye to Mr. Phulphoto. And I think it will satisfy Justice Tariq Masood. We would say that he has been considered but not found fit for elevation. Is this what you want to say? Not recommended for elevation. Okay, for the rest, we defer to meet again. And for me to make further and other recommendations, you have given me some names. I don’t want to discuss my reservations about Justice Aqeel Abbasi. I have material on that restructures and knows about it. And Mr. Tariq knows about it. But today, I will tell you that I will meet him personally. And I will form an opinion about him. If necessary, I will request one of my colleagues in this commission to join me and we can have an exchange of thoughts and so forth. And I’ll come back and report that in an informal meeting. I mean, I have no connection with Karachi no personal likes or dislikes. But I go by the record, I know of three incidents which took place, but agreed Mr. Akhtar is right. All these incidents took place after he was bypassed, okay. Let’s see if it is workable. Otherwise, I’ll place that material before you and you can think about it. But one thing I’ll say that Mr. Phulpoto I know him personally he was with me on the bench for six years. And his honesty is beyond question.
The second point is on Article 206. The Constitution has provided a solution. You don’t ask; you don’t hear a person said I want to become a judge of the Supreme Court. So I don’t want to become a judge of the Supreme Court. If you start doing this, we are violating the Constitution of Pakistan. You’re talking about conventions here. I’m talking about the the Constitution. Please do not violate the Constitution, please let us not rewrite the Constitution. I don’t have such powers, nor do I claim such powers. Then we are talking about there is another aspect. We immediately disregard the Chief Justice. After all, Sir, you sit there because of being senior most; your predecessor sat in your chair. Because there were senior most. Of course, the answer will come immediately. Why we are there is the spirit of the Constitution, do senior most judges can remove the judges in this room. But that did not fit to be appointed as judges to the Supreme Court.
What I already so let’s if we are going to innovate. I do not like innovating with the Constitution or playing with the Constitution. I go by the letter of the Constitution when that is not available. I look elsewhere in the Constitution when that is not available. I look to the spirit of the Constitution. I could call myself a fairly successful lawyer. But what I learned as Chief Justice never would have learned as a judge, I had to deal with so many other matters, you know it. And all those who’ve been Chief Justice, then it’s all together a different ballgame. So we are saying, Chief Justices, you have gained some valuable experience you have, you can remove us sitting on the Supreme Judicial Council, but we’re not fit enough to be brought here, arbitrarily, by all means, consider them, analyze them, eject them, I really should bypass them whatever word you want to use. And I respect each and every one of you. Great learned constitutional minds, if I was known for any capacity, because certainly not criminal law, which brought me to the Supreme Court. The areas of my expertise was not given. So to again, penalize a chief just to get over, he hasn’t done this work. Is it his fault, that he’s not done this work? I considered Sardar Sahib is expert in criminal law. He sat with me and I was stunned. His ability. I mean for a person of this experience, it doesn’t require much to shift gears. I hear cases of a law I’ve never heard about. And you know, need analysis, you mean analytical skill. It is not after 40 years of learning if you don’t do that, and if you don’t know basics of civil law or basics of criminal law, then sorry, so you don’t really want to be elevated to the Supreme Court. You should be shunted out of the judiciary; full stop. I will start with Sardar sahib analytical skills on civil law. I had the brief, pleasant opportunity to sit with him. Sir, I have sat with some Chief Justices. Shall I mentioned that temperament? They were obnoxious to speak of a good temperament. So I corrected them; that was a style of speaking. It wasn’t that they were down doing it, but I got scared as hell. So at least there is no disrespect intended and that’s why I’m not naming them. So let’s not make these artificial constructs, and then fit a square peg into a round hole that is not on. And so with the greatest of respect and humility and the greatest respect that I hold you in, you don’t have the unilateral part to nominate anybody. You are equal. We all of us nominate not you, then we all of us carry one vote and decide. Hopefully, it doesn’t come to ballot casting. Now you are bypassing chief justices and senior judges. I have the chart before me and I just opened it on the internet. And take for instance, Balochistan when it sounded senior most and the Chief Justice. I know this person and nobody mentioned. I know. Chief Justice Naeem Akhtar. I know Hashim Khan. Justice Mandokhail is an expert in constitutional as well as criminal law. His name was not mentioned. Because for the simple reason, you don’t know. But you’re not prepared to hear people. We’ve shared a common boundary wall. I can offer some bad advice, or maybe some good advice at time. So these are matters of grave urgency. As a Muslim, it is my duty if someone speaks wrong to say so. So that is wrong. Your own handwriting says the criteria has not been settled. Competence, integrity. Can anybody say no? We want incompetent judges? No.
I can say I don’t want to be a judge to the Supreme Court. So is that enough if I don’t want to resign? But if you say one, it’s not a question of my desire. I consider it my duty, not my desire. If it was my desire, I would not be a judge one single day. I become a judge. Now I’ll do my duty.
(Extreme caution has been observed in transcribing the talk of participants and the parts where spoken sentences could not be understood properly have been omitted.)