Appointment of five apex court judges: Justice Isa objects to summoning of JCP meeting

ISLAMABAD: Justice Qazi Faez Isa, senior puisne judge of the Supreme Court, raised objections over the summoning of a Judicial Commission of Pakistan (JCP) meeting regarding the appointment of five apex court judges nominated by Chief Justice of Pakistan (CJP) Umar Ata Bandial on July 28.

In a five-page letter to the JCP chairman and other members, Justice Isa has requested that the JCP meeting should be postponed. Instead, let us first meet to consider how to proceed further in the matter.

The JCP on July 28 had summoned to consider five judges for the apex court.

Justice Faez wrote; “If chief justices and senior puisne judges of the High Courts are to be bypassed then to first develop for consideration of the JCP criteria for nominees since the then senior most judge failed to accomplish the task assigned to him”.

Justice Isa said that the CJ wants to “rush through a most delicate matter in a very questionable manner. He wants 2,347 pages of documents to be examined in a week. However, I have not even been provided with these documents. Instead, an attempt to Whatsapp them was made, but only the first document of 14 pages I accessed and could read. Regarding the others my phone states ‘storage full’.

I have informed of this but the documents have still not been couriered to me or sent to the Pakistan Embassy in Madrid for onward transmission to me. If someone else was dealt with similarly and the matter was litigated, the court would have deplored such arbitrariness and rushed conduct as it would constitute insufficient notice and would have violated the constitutional provision of “due process”. The CJ cannot blitzkrieg due process and sufficient notice.”

“A factor which the CJ mentions as a disqualifying factor for being chosen is the delay in writing judgements. High Courts judges have far more work assigned to them as compared to SC judges. If this is a criterion, and there is nothing wrong with it, let us also self-reflect and do a little self-accountability. The CJ should order a survey of SC judges to ascertain (1) how long the CJ and each judge takes on average to write judgments, (2) how many cases are disposed of through “short orders”, (3) how long after does it take for the detailed reasons to come and (4) how many are still awaited. I may mention that the malaise of “short orders” is a novelty; Article 189 of the Constitution mentions “decisions” of the SC, “short orders” are an invention not sanctioned by the Constitution,” the letter stated.

“The kind of power exercised by the CJ is not permitted by the Constitution. The CJ arbitrarily and unilaterally decided: (1) the number of judges to be appointed, (2) the High Court from which they should be taken, (3) considered judges up to a particular number, (4) gave his preemptive opinion on who the best candidates are, (5) put up for consideration to the JCP only his preselected candidates, (6) formulated a questionnaire soliciting information, which included compelling serving judges to disclose their financials (ironically the CJ refused to do so himself when the SC received a written request for information pursuant to Article 19A of the Constitution) and (7) sought medical information in derogation of the constitutional protection of privacy and dignity,” added the letter.

Justice Isa also said that prior to writing this letter he penned a note to the CJ requesting him “not to act arbitrarily and reminded him that arrogance (takabbur) and ego (anaa) is abhorred by Almighty Allah, but since the CJ did not respond he is compelled to write to all members” as this is “the dictate” of his office and of the oath taken by him “to defend and protect the Constitution”.

“When the CJ was the senior most judge he was appointed to chair a five-member committee of the JCP tasked to determine criteria in the appointment of judges, in the event that Chief Justices and senior-most judges were not to be nominated. The task assigned to him remains incomplete. Only one meeting of the committee was called on 9 March 2022; Hon’ble Justice Umar Ata Bandial signed the minutes of this one meeting writing that: ‘Hon’ble Chairman thanked all the members for sharing their valuable thoughts and suggestions and expected to meet soon with some concrete ideas on paper to proceed further.’ No further meeting took place, no ‘concrete ideas on paper’ came and the committee did not submit its report to the JCP yet the CJ (now) says that the committee had completed its task. The members of the committee who I spoke to confirm said that the committee met only once, and no decision was taken.”

“However,” he said, “the CJ superciliously took it upon himself to create a meaningless and perfunctory “criteria”. And, having done so himself proceeds to gauge his pre-selected nominees against this “criteria”. With respect, this mocks the JCP and violates the Constitution,” added the judge.

Copyright Business Recorder, 2022