Senior advocate Akhtar Hussain, Pakistan Bar Council representative in the Judicial Commission of Pakistan, has written to Chief Justice of Pakistan (CJP) Umar Ata Bandial requesting the amendment of JCP rules and calling for “objective, transparent and measurable processes” to nominate and appoint judges.
In a four-page letter dated August 4, Hussain requested that the commission’s Rule Making Committee should be activated under the chairmanship of the senior puisne judge (Qazi Faez Isa) with a “clear mandate to solicit the views of all stakeholders and thereafter devise draft Rules and Criteria for Appointments” within four weeks.
The lawyer’s letter is the latest to the top judge after the July 28 JCP session, in which the panel opposed — by a majority of five to four — a set of four names proposed by the CJP for elevation to the Supreme Court, but decided to consider the case of the Peshawar High Court (PHC) chief justice later.
The JCP had met to consider the elevation of Peshawar High Court Chief Justice Qaiser Rasheed Khan, Justice Shahid Waheed of the Lahore High Court, and Justice Syed Hasan Azhar Rizvi, Justice Muhammad Shafi Siddiq and Justice Naimatullah Phulpoto from the Sindh High Court to the Supreme Court.
A press release issued by the apex court’s public relations officer after the meeting said it had been deferred to enable the CJP to place additional information and data about the nominations and add more names to the list for consideration.
But Justice Qazi Faez Isa and Justice Sardar Tariq Masood wrote to the CJP, claiming that the nominees were not approved in the session. Attorney General Ashtar Ausaf later backed their stances in a separate letter.
The controversy surrounding developments during the closed-door meeting deepened further a day later when the top judge relaxed the commission’s rules and ordered the release of over-two-hour-long audio recording of the session to the public the following day.
“In the first place, I feel the writing of such letters and the issuance of press releases and audio proceedings of the Commission’s meeting should not have been necessary,” JCP member Akhtar Hussain said in his letter.
“If the meeting of 28 July had not been abruptly terminated and a formal vote and final decision been recorded in the minutes at the end of the meeting — this occasion may not have arisen,” the letter stated.
Hussain pointed out that it was essential that meetings of the commission ended with a formal vote-taking as it was entirely possible that one or more members changed their minds.
Referring to Justice Sajjad Ali Shah’s letter to the CJP, in which he expressed his disappointment over comments made during the July 28 JCP session about the integrity of two nominees from Sindh, Hussain said that certain discussions that took place in the Judicial Commission had the effect of harming the reputation of the judges concerned.
“It is exactly for that reason the deliberations of the Commission are confidential — to strike a balance between the desire for a free and frank exchange of views regarding candidates whilst protecting the reputations of those who are discussed,” the lawyer explained, stressing consultation with all members of the Judicial Commission before releasing the audio recordings.
He went on that in the last meeting of the commission, there was a clear consensus among the members to amend the rules.
“There is also a clear majority for adhering to seniority principle, until this process is completed and also for allowing all commission members to propose nominees for appointment rather than the Chief Justice alone,” Hussain’s letter said.
“This must be treated as a decision of the commission and implemented accordingly rather than needlessly making alternate nominations which are then not approved (as has happened on the last three occasions).”
It added: “We must not divide ourselves in camps nor treat the Commission’s decisions as an internal election. We must neither seek to rush through our favoured candidates when we feel we are in the majority nor seek to unnecessarily postpone when we feel we are in minority.”
In its meeting on July 28, the JCP had held a “detailed discussion” on the elevation of five high court judges to the SC but had deferred its meeting without a decision in order to acquire more information about existing candidates and maybe even consider other names.
The positions of judges at the apex court had fallen vacant after the retirement of Justice Mushir Alam, former chief justice Gulzar Ahmed, Justice Maqbool Baqar and Justice Mazhar Alam Khan Miankhel.
The apex court is currently functioning with 13 judges against a sanctioned strength of 17. Justice Sajjad Ali Shah will reach superannuation next August.