ISLAMABAD: Justice Qazi Faez Isa, a member of the Judicial Commission of Pakistan (JCP), has advised Chief Justice of Pakistan (JCP) Justice Gulzar Ahmed to first determine the criteria for nomination of judges for appointment to the top court and then consider elevation of Justice Ayesha A. Malik of the Lahore High Court (LHC) in the commission’s meeting on Jan 6.

“Once the nomination and selection criteria are determined, it will help dispel misgivings that arbitrariness in the selection process holds sway,” Justice Isa said in a two-page letter to the CJP, two days before the JCP’s scheduled meeting.

On Jan 3, a representative meeting of the Pakistan Bar Council (PBC) and all bar associations had requested the CJP to postpone Thursday’s meeting of the JCP, scheduled to consider elevation of Justice Malik — who is fourth in the seniority list of the high court.

Says it will help dispel misgiving that arbitrariness holds sway in process for selection of judges

As Justice Isa was away from the country, he could not attend the Sept 9 meeting of the JCP in which out of a total of eight, four members of the commission — Justice Maqbool Baqar, Justice Sardar Tariq Masood, former judge Dost Mohammad Khan and PBC representative Akhtar Hussain — had opposed the idea of elevating Justice Malik whereas the CJP, senior puisne judge of the apex court Justice Umar Ata Bandial, federal Law Minister Barrister Dr Farogh Naseem and Attorney General Khalid Jawed Khan favoured Justice Malik.

A source privy to the development told Dawn that the letter written by Justice Isa highlighted that Article 175A (4) of the Constitution stipulated that the JCP should make rules regulating the procedure of elevating judges to the Supreme Court.

This power to make rules regulating the procedure did not enable nor empower the commission to act beyond the mandate given to it by the Constitution, the letter emphasised. Rule 3 of the Judicial Commission of Pakistan Rules 2010 only meant that the nominees be routed through the chief justices concerned, not that the chief justices alone might make nominations, it added.

The letter highlighted that the commission was set up to make the nomination and selection process inclusive and transparent by diluting the power of the CJP instead of enhancing it.

Article 175A (2) of the Constitution stated that the CJP would be the chairman of the commission and nothing more and it did not empower him to nominate someone alone, the letter said, adding that it also did not state that the commission might consider the CJP’s nominee only.

Diverse opinions had emerged about the nomination for the appointment to the apex court, the letter said.

Therefore, it has become imperative to determine the criteria for the selection first.

The merit versus seniority argument, the letter said, as if both were mutually exclusive, was without any basis and if affirmative action was required to ensure regional, ethnic, religious or gender representation, the JCP should first examine if this was permissible under the Constitution, the letter said.

Referring to the appointment of judges to the Peshawar High Court (PHC), Justice Isa expressed his surprise that just a couple of weeks before the retirement of the CJP, six nominees were proposed for appointment as judges of the high court.

If concerns expressed by lawyers and judges were left unaddressed, let alone unanswered, then public confidence eroded, it said, adding that a single vote cast this or that way might get a candidate in, but arbitrariness undermined credibility of the judiciary and those selected started work under a cloud of partisanship.

Therefore, before considering the nominees for appointment to the PHC it would be appropriate that the JCP should determine the criteria against which the nominees were considered, the letter said, adding that such criteria should be made an agenda for the coming JCP meeting.

Published in Dawn, January 5th, 2022