Supreme Court Justice Qazi Faez Isa has taken an exception to the summoning of Judicial Commission of Pakistan (JCP) meetings for the appointment of new judges to the Sindh High Court (SHC) and Lahore High Court (LHC) in his absence.
The justice, in a WhatsApp message to Chief Justice Umar Ata Bandial, which was also addressed to the members of the council, said: “It seems that more care in the appointment of a cook is exercised than in the appointment of judges.”
Justice Isa said he learnt, through the media that two meetings of the JCP have been called on June 28 and 29, respectively, to consider the nominees to the Sindh High Court (SHC) and the confirmation of the additional judges of Lahore High Court (LHC).
“Neither the Hon'ble Chief Justice of Pakistan (HCJP) nor Jawad Paul, the Secretary of the JCP (the Secretary), informed me of these meetings,” the justice said, who has earlier called for the dismissal of the incumbent secretary.
He said that his private secretary took photos of the secretary's letters which he WhatsApped him, and photos of the accompanying three large boxes of documents, presumably containing the particulars of the nominees and specimens of their work.
Justice Isa said he takes “great exception” to the manner in which these JCP meetings have been called and that it has become tiresome to keep repeating the details of the “manipulative and illegal” conduct of the secretary.
“Serious concerns expressed verbally and in writing, about the secretary remain unaddressed; the courtesy of a reply is not even extended. Is this disdain, arrogance or a flaunting of unaccountability? And, does such conduct strengthen and build institutions or weaken and destroy them?” he asked.
“When matters are determined unilaterally, and arbitrarily, and the secretary cum registrar is “completely unaccountable”, one may well question what legitimacy attaches to the Supreme Court taking issue with those who similarly exercise powers in their respective domains?”
Moving on, the justice raised 19 points as to why the JCP meetings should not have been called:
- These meetings could have been held earlier, that is, when the SC was not on vacation. They can be held when vacations are over.
- The HCJP himself issued the notification regarding SC vacations, which was circulated to all concerned and published in the official gazette. Consequently, normal/regular work is suspended during notified gazette vacations.
- The SHC and the LHC are also on summer vacations.
- The 20 vacancies sought to be filled in did not suddenly occur. They have existed for years. Where lies the sudden need to fill them, and, to do so in such a tearing rush?
- The tenure of the 13 LHC additional judges was recently extended by 6 months. Why has this matter been brought up again so soon afterwards?
- Does special treatment with regard to LHC incumbents not create unnecessary misgivings? Will those in other provinces and of Islamabad not legitimately question this differential treatment? And, will this provide a pretext to those who want to create fissures in the unity of the nation?
- The reason to extend the tenure of the 13 LHC additional judges was because we did not have the opportunity to examine their documents contained in 2 boxes. Which now have become 4 boxes that we have not had the time to examine.
- Is it at all reasonable to presume that JCP members have examined the voluminous documents contained in a box with regard to the nominees of the SHC in a few days? And, those members on sanctioned leave and who are abroad are not given an opportunity to examine them at all.
- The senior-most judge always chairs one of the 2 committees (antecedents and competence). Why has he been denied this responsibility with regard to these nominees?
- Incidentally, I am the only judicial member of the JCP who has lived and practised in Sindh. Then does it stand to reason to exclude me from consultation with regard to appointments to the SHC? And, is it not insulting that I have not been nominated to chair either of the 2 committees regarding SHC appointments?
- The ugly head of provincialism and ethnicity has raised itself because of the treatment meted out to the Hon'ble CJ of the SHC (by the former CJP). He was bypassed by the then CJP, stating that he was not fit for appointment to the Supreme Court, yet just a few days later the same CJP proposed that he be appointed as an ad hoc judge of the SC. Did he become fit overnight? Or was this done to ridicule and humiliate him? If the CJ of a province is held in such contempt by the head of the institution, then is it justified to punish for contempt those others who belittle judges?
- The Hon'ble CJ of the SHC had earlier nominated a different group, including a woman, but he withdrew the names, apparently because of the pressure exerted by those pursuing an ethnic agenda. Having undermined the authority of the Hon'ble CJ of the SHC was this unexpected?
- The Constitution mandates appointing an Acting Chief Justice when the HCJP is out of the country, despite the fact that the HCJP may be capable of performing his functions of office through video-link, WhatsApp, etc. Therefore, what is the justification to hold meetings of the JCP in the absence of the senior-most judge, who is abroad during gazette court vacations?
- The HCJP had also directed the issuance of a no-objection certificate ('NOC') to me, then why call JCP meetings at a time when it is known that I am abroad?
- When the matter of the appointment of a female judge to the SC was being considered much was said by those advocating such an appointment, despite the fact that it was pointed out that the total number of female judges in the superior courts would remain the same. Yet those advocating more female judges have so soon turned a blind eye to the fact that there is not a single female amongst the 20 nominees.
- It seems that more care in the appointment of a cook is exercised than in the appointment of judges. A cook's ability and antecedents are checked, but in the appointment of judges, who will be determining the fate of the people, caution has been thrown to the wind as no opportunity has been provided to pursue 5 boxes of documents.
- No effort was made to contact me and find out where I am, and arrange for a video-link facility to enable my virtual participation. Is it then wrong to presume that the sole reason for calling these meetings is to ensure that I would not participate?
- Can there be meaningful participation without examining the relevant documents? Or has the form been substituted for substance?
- The Constitution places a heavy responsibility on all members of the JCP to abide by their constitutional duty. But, they are not allowed to undertake their constitutional duties in a meaningful way.
The senior judge then said that the people of this great nation deserve much better and let “us not play with their destiny. Let us be allowed to do our constitutional duty properly and with due deliberation”.
Therefore, Justice Isa said, it would be appropriate to postpone the meetings of the JCP till after the SC vacation.
He said it would also give all JCP members the possibility to participate, and after having had the opportunity to examine the documents in the said five boxes.
“They would also have the requisite time to make enquiries about the proposed nominees,” he said.
“However, if we must persist in the folly of acting arbitrarily and ensuring packing of courts, then please arrange for a video link facility for me from Spain so I can further record my objections to the illegal convening of these meetings,” he requested.
In the end, he also apologised for communicating through WhatsApp but noted that it is the only medium he could manage from Spain.