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ISLAMABAD: Chief Justice for Pakistan Umar Ata Bandial was asked to elevate the High Court chief justices for filling three vacant posts of judges in the Supreme Court.

Justice Qazi Faez Isa, senior puisne judge of the apex court, wrote a letter to CJP Bandial, which he also sent to other members of the Judicial Commission of Pakistan (JCP), highlighting the benefit of elevating the chief justices of the high courts to the Supreme Court.

Presently, there are three vacant posts of judges in the apex court judges, after the retirement of Chief Justice Gulzar Ahmed, Justice Qazi Muhammad Amin, and Justice Maqbool Baqir.

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.

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However, Justice Isa claimed that the practice was discarded by two former CJPs, Mian Saqib Nisar and Gulzar Ahmed.

The apex court’s 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.

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.

The SC senior-most judge further wrote; “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.”

Akhtar Hussain, who represents the Pakistan Bar Council (PBC), on May 20 had written a letter to Chief Justice of Pakistan Umar Ata Bandial to reconstitute the JCP rules committee on an urgent basis to formulate and finalise criteria for the appointment of superior court judges.

He suggested that the rules committee be headed by senior puisne judge Justice Qazi Faez Isa. The letter mentions that for the purpose of appointment in the Supreme Court, particulars had been called from 12 senior judges of the Sindh High Court and five from the Lahore High Court which has caused a stir among the members of the bar and high court judges, who feared that the seniority principle might be bypassed once again.

It contended that the Pakistan Bar Council (PBC) — the regulatory body of lawyers — had recently called a meeting of the nominees of all provincial and Islamabad bar councils in the JCP and resolved to place before the chief justice of Pakistan (CJP) that no fresh elevation be made in the superior courts before carrying out amendments to the JCP rules 2010 and developing criteria.

Copyright Business Recorder, 2022

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