Justice Isa again strongly advocates for elevation of high court chief justices to country’s superior court in absence of an objective criteria
ISLAMABAD ( Web News )
As three seats for Supreme Court of Pakistan judges lie vacant after the retirement of former chief justice of Pakistan Justice Gulzar Ahmed, Justice Qazi Muhammad Amin Ahmed and Justice Maqbool Baqar, senior most apex court judge Justice Qazi Faez Isa has again strongly advocated for the elevation of high court chief justices to the country’s superior court in the absence of an objective criteria.
It was revealed on Saturday that Justice Qazi Faez Isa, a member of the Judicial Commission of Pakistan (JCP), has penned an eight pages letter to the Chairman Judicial Commission of Pakistan and Chief Justice of Pakistan Justice Umar Ata Bandial regarding the matter.
The letter underscored potential advantages regarding the appointment of chief justices of high courts as apex court judges. Justice Isa also provided reasons as to why junior high court judges should not be elevated to the SC.
A copy of the letter has been sent to all members of the JCP, including to two former chief justices.
The previous six appointments to the Supreme Court were made without adhering to the seniority principle. Currently, there are three vacant posts for apex court judges, but the formal process of appointment has yet to start.
As per a senior representative of the bar, the majority of JCP members agree with the bar’s view that if there are no solid reasons then senior judges, including chief justices, should be considered for the appointment of SC judges, otherwise there will be a perception of ‘court packing’.
“Superior court judges are required to take an oath to preserve, protect and defend the Constitution. An important component of this oath is to ensure that the people’s fundamental rights guaranteed by the Constitution are not trampled upon. Therefore, an important factor to consider in the selection of superior court judges is also whether they have the requisite ability and determination to resist and repel unconstitutional acts, and the courage to preserve, protect and defend the Constitution,” read the letter penned by Justice Isa.
The senior judge also noted in his letter that the long-standing practice was to elevate chief justices of the high court to the Supreme Court, as they would have gained valuable judicial experience covering a multitude of legal subjects through their tenure. “They would also be conversant with the multifarious issues and problems of judicial administration,” he added.
However, Justice Isa claimed that the practice was discarded by two former CJPs, Mian Saqib Nisar and Gulzar Ahmed. The apex court judge maintained that this was done by creating an artificial polarity – seniority versus merit.
“The Consultation does not stipulate this, these chief justices then assumed that seniority and merit were mutually exclusive, and by applying their self-justifying specious logic, unilaterally nominated candidates, whose merit they proclaimed. This resulted in the bypassing of chief justices and senior judges of the high courts,” Justice Isa wrote.
He remarked that at times it was also asserted that the chosen nominee had decided upon a large number of cases. “But we know that the work load on the judges of the Supreme Court is less than that on the judges of high court, which negates this sophistry,” he added.
Justice Isa stated that appointing competent but junior judges to the apex court before they were ready will neither serve the interest of the judges being appointed nor of the institution.
“These junior judges are deprived of the opportunity to serve as Chief Justice of the high court, and resultantly do not acquire the rich experience gained from having held this office. Consequently, when the Chief Justice and senior judges were bypassed a public perception developed that they were not competent; which undermined both their credibility and that of the institution,” the letter further stated.
Justice Isa said that the natural human feelings of despondency and dejection set in amongst those who were bypassed without good reason, and which adversely affected their desire to work and the quality of their decisions.
The SC justice also questioned the appointment of a junior judge of the Sindh High Court by former CJP Saqib Nisar.
“Nisar sought to justify the nomination of a junior judge to the Supreme Court from the Sindh High Court by asserting, but without proof, that neither the Chief Justice nor any of the senior judges wanted to be appointed to the Supreme Court,” he claimed.
However, the concerned CJ and senior judges tell a different story, he stated. “Senior judges who were bypassed maintain that they were not informed that a judge junior to them was to be nominated, and that they had not declined, rather had demurred as a matter of courtesy to their Chief Justice.”
Justice Isa upheld that eagerness for the appointment is not an endearing quality, and may constitute a disqualifying factor.
Rebutting the claims of former CJP Nisar, Isa stated that Article 206(2) of the Constitution stipulates that, “A Judge of the High Court who does not accept appointment as a Judge of the Supreme Court shall be deemed to have retired from his office.’ Therefore, to assert (and to do so without proof) that they had declined was disingenuous.”
Justice Isa also accused former CJP Gulzar Ahmed of failure to implement robust strategies for gauging merit. The former CJP allegedly bypassed the chief justice of the Sindh High Court and senior judges, by stating that that they did not meet the merit test, without having first established the criteria and the methodology to gauge merit.
However, Justice Isa claimed, that a few weeks later the ex-CJP proposed the same chief justice for appointment as an ad-hoc judge to the Supreme Court. “Had he now miraculously passed the elusive merit test?” the judge questioned.
In his letter Justice Qazi Faez Isa said that members of the Judicial Commission, including the Pakistan Bar and the Supreme Court Bar, had repeatedly demanded amendments to the rules. Seniority, merit and qualification have to be considered in the appointment of judges, but in the Supreme Court, a junior judge has been appointed in place of the Chief Justice of the Sindh High Court.
He said that former Chief Justice Saqib Nisar had appointed junior judges saying that senior judges were reluctant to take the charge, however, Chief Justice of the High Court and senior judges refuted these claims.
Justice Qazi Faez Isa further said that former Chief Justice Gulzar Ahmed also ignored Chief Justice Sindh High Court and senior judges. I am also sending a copy of the letter to both the former Chief Justices, he added.
He also mentioned that as a member of the Judicial Commission, the opinion of former judge Justice Maqbool Baqar was also ignored.
Justice Qazi Faez said that the committee set up to amend the Judicial Commission Rules has not given any opinion till date, adding that the Judicial Commission meeting should not be in-camera and the public should be aware of the meeting for appointment of judges.
Justice Qazi Faez Isa, while objecting to the appointment of Registrar Supreme Court Jawad Paul as Secretary Judicial Commission, said that the Registrar Supreme Court is a government employee who was appointed from the Prime Minister’s House. He immediately fixed the cases of former Prime Minister Imran Khan and his party. The cases filed against Imran Khan or PTI were not deliberately fixed.
The borrowed registrar has questioned the qualifications of other competent officers, said Justice Qazi Faiz Isa.