SCBA request to CJP: Defer judges’ elevation issue to next chief justice

ISLAMABAD: The legal fraternity on Thursday requested Chief Justice Gulzar Ahmed to defer the matter of elevation of Judges to the Supreme Court to the forthcoming chief justice.

They also demanded the Judicial Commission of Pakistan (JCP) should refrain from considering the name of same judge twice, and ensure adherence to the principles as well as the past traditions.

The 4th meeting of executive committee of the Supreme Court Bar Association (SCBA) was held here at the Supreme Court, chaired by its president Muhammad Ahsan Bhoon. 

Pakistan Bar Council (PBC) Vice Chairman Kush Dil Khan, PBC Executive Committee Chairman Muhammad Masood Chishti, and PBC Member Tahir Nasarullah Warraich attended the meeting as special invitees.

The meeting considered the matter of appointment of judges at length in the wake of proposed meeting of the JCP, to be held on Jan 6, 2022. The meeting, in its resolutions, passed unanimously, brought into the notice of Chief Justice Gulzar Ahmedhis own well-founded principle that no chief justice should commence the procedure for elevations to the Supreme Court if his tenure is nearing its end. The house, therefore, requested the CJ that because his tenure was approaching its end, it would be appropriate if he defers the matter of elevation to the Supreme Court to the forthcoming chief justice of Pakistan.

CJP Gulzar Ahmed will retire on Feb 2, 2022 and senior most judge Justice Umer Ata Bandial will take oath as the 28th Chief Justice of Pakistan. The meeting considered the fact that as per past traditions, the nomination for elevation (if not approved) cannot be considered twice as it gives the impression of nepotism); hence the house anticipated that the chief justice and the Judicial Commission will refrain from considering the name of same judge twice, and will ensure adherence to this principle as well.

In September this year, the elevation of Justice Ayesha Malik of Lahore High Court to Supreme Court had remained inconclusive due to equal split after four members of the JCP opposed while four others supported her elevation.

The JCP had deferred the matter and recently, Chief Justice Gulzar Ahmed has again proposed the appointment of Justice Ayesha A Malik of Lahore High Court as judge of the Supreme Court In this respect, the CJP convened the JCP meeting on Jan 6 wherein, the matter of elevation of Justice Ayesha A Malik as judge of the Supreme Court will be deliberated upon.

The house resolved and demanded that amendments to Article 175-A and Article 209 of the Constitution should be made, wherein there should be only one forum empowered for the appointments, elevations or removal of Judges.

It was unanimously adopted that composition of the Judicial Commission must also be reviewed wherein at least two representatives from bar bodies and two representatives from opposition parties must be given proper representation whereas representation of two Supreme Court Judges in Judicial Commission of Pakistan is more than sufficient i.e. Chief Justice and Senior Puisne Judge, alongside the Attorney General for Pakistan and Federal Law Minister.

The house resolved that same criteria must be adopted for the elevations to high courts wherein Chief Justice of Pakistan and a senior judge of respective High Court will be taken on board alongside one member of Bar Council concerned and one member of the Pakistan Bar Council.

The house unanimously resolved that the legal fraternity didn’t have any personal agenda neither they are against anyone nor in favour of anyone, rather want strict adherence to the rule of law and principle of seniority, as such, nomination for the elevation of junior judge to the Supreme Court was received with displeasure, hence was disapproved by the house.

Similarly, the house, while congratulating the new member-elect of the JCP, Justice (retd) Sarmad Jalal Osmani, expect of him that he will maintain the principle of seniority as resolved by the SCBA as well as Pakistan Bar Council.

The house also resolved to form a parliamentary commission, duly empowered to review the appointments or elevations made from 2009 to 2013 on the basis of seniority, merit, competency integrity and capacity to work, whether the same be in the high courts or in Supreme Court and if they do not fulfil the such parameters, they should be removed from their offices.

The meeting resolved to fully participate in the meeting, called by Pakistan Bar Council on January 3, 2022, to determine their future line of action.

Separately, PBC Vice Chairman Khushdil Khan has convened a Joint meeting of the vice-chairmen, chairmen, executive committees, members JCP and provincial/Islamabad bar councils and presidents of Supreme Court and high court bar associations on Monday, January 3, 2022, at 11am in PBC office at Supreme Court, Islamabad.

The meeting will consider the matter of elevation of junior Judge of High Court to the Supreme Court and violation of seniority principle”, says a press release issued here by the PBC office.

The council stated that Chief Justice of Pakistan has again proposed the name of a junior Judge of the Lahore High Court who is at Sr. No. 4 in seniority list while superseding three senior judges including the LHC chief justice for JCP’s next meeting being held on Jan 05, while same name was earlier disapproved by the Commission and to chalk out future course of action.

The PBC vice chairman requested all the members to attend the joint meeting. Earlier, Khushdil Khan had expressed his serious reservations and concerns regarding move to violate seniority principle for elevation of judges to the Supreme Court and high courts. He had said that if the seniority principle is violated for elevation/ appointment of judges to the Supreme Court, high court and lower courts, the legal fraternity will resist it with full force and zeal.

On the contrary, senior law expert Saad Rasool has said that Justice Ayesha A Malik is a very competent and qualified judge and her elevation to Supreme Court will be of great importance.

"She will be a good inclusion in the Supreme Court and will be very much helpful in apex court decisions in civil, constitutional as well as corporate side," he told The News.

As far as the stance so far adopted by the PBC and SCBA about seniority principle, he said that it was not for the first time that junior judges are being elevated to Supreme Court. He recalled that during the past ten years and after the 18th Constitutional Amendment when judicial appointments were being made under Article 175-A of the Constitution and since than many junior judges have been elevated to Supreme Court.

He said that Justice Mian Saqib Nisar and Justice Asif Saeed Khosa being the junior judges of Justice Khwaja Sharif were elevated to Supreme Court and later they became Chief Justices of Pakistan while Justice Khwaja Sharif remained as Chief Justice of Lahore

High Court.

Similarly he said that recently Justice Mazahir Ali Akbar Naqvi has been elevated to the SCfrom the LHC. Why did the PBC and SCBA not objected that time but right now making hue and cry over the appointment of Ayesha Malik, Saad Rasool questioned. Right now apart from seniority principle matter, there is some another agenda at play on the part of these people which needs to be inquired into, he added.