The Judicial Commission of Pakistan (JCP) on Thursday held a “detailed discussion” on the elevation of five high court judges to the Supreme Court but deferred its meeting without a decision in order to acquire more information about existing candidates and maybe even consider other names.

Chief Justice of Pakistan (CJP) Umar Ata Bandial presided over the JCP meeting, which considered the elevation of Justice Shahid Waheed of the Lahore High Court, Peshawar High Court Chief Justice Qaiser Rasheed Khan and Justice Syed Hasan Azhar Rizvi as well as Justice Muhammad Shafi Siddiq and Justice Naimatullah Phulpoto — both of the Sindh High Court.

The decision regarding the deferral of the meeting was conveyed in a press release issued by the apex court’s Public Relations Officer Shahid Hussain Kamboyo.

“The names of all five hon’ble judges proposed by the hon’ble chief justice of Pakistan were considered by the JCP,” the statement said. “After detailed discussion, it was proposed by the chairman JCP to defer the meeting in order to enable the chief justice to place additional information and data about those already proposed and if he considers appropriate, add more names to the list of proposees for consideration by the JCP.

“The proposal to defer the meeting was supported by Mr Justice Ijazul Ahsan, Mr Justice Sajjad Ali Shah, Mr Justice (Retd) Sarmad Jalal Osmany and the attorney general for Pakistan. It was accordingly decided to defer the meeting. The date of the next meeting will be communicated to the members of the Judicial Commission by the chairman, JCP.”

The SC spokesperson’s statement came shortly after media outlets claimed that the JCP voted against the elevation of the aforementioned judges 5-4.

CJP, Justice Sajjad Ali Shah, Justice Ijazul Ahsan and former SC judge Sarmad Jalal Osmany voted in favour of the judges’ elevation while Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Attorney General Ashtar Ausaf, Law Minister Azam Tarar and Pakistan Bar Council’s (PBC) representative Akhtar Hussain voted against, the reports added.

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.

Justice Isa urges CJP not to ‘bulldoze’ appointment process

Earlier this week, Justice Isa had advised the CJP not to bulldoze the “due” process for appointment of more than one-third of the total number of judges in the apex court.

In a letter written to the commission, Justice Isa deplored the manner of summoning the JCP’s meeting to consider the elevation of high court judges to the Supreme Court.

Justice Isa said it was surprising that the JCP’s meeting had been convened to consider appointment of five SC judges during summer vacations.

Justice Isa stated in the letter that “while on my annual leave I received a Whatsapp message from the Additional Registrar of the Supreme Court informing me that the Hon’ble Chief Justice of Pakistan has convened a meeting of the JCP on 28 July 2022 to consider appointing five judges to the SC.

“When availing of annual leave no meeting of the JCP was scheduled but as soon as I left Pakistan the CJP decided to hold two meetings of the JCP to consider appointments to the Sindh and Lahore High Courts, and now a third unscheduled meeting of the JCP is to be held during the summer vacations of the SC.

“The summer vacations of the SC were notified by the CJP himself, and then these were gazetted in the Official Gazette. If the CJP renders his own notification utterly meaningless then let him first withdraw it, instead of violating it.”

He pointed out that in the JCP meeting held on June 28, everyone, except the CJP and Justice Ijaz-ul-Ahsan, voted to postpone the meeting as there was no justification to call it during the gazetted summer vacations and as the most senior judge was on sanctioned annual leave.

“I most respectfully submit that the CJP cannot reject decisions of the JCP. In calling another meeting during notified-gazetted vacations, when some members are on annual leave, and at a time when the Attorney-General is recovering from the second surgery he has recently undergone, is unjustified.

The democratically taken decision by the JCP not to meet in such circumstances must be abided by. Democracy is the bedrock of the Constitution and the basis on which Pakistan came into existence.“

Justice Isa suggested that the meeting might be deferred till August 13 when he will resume the office, adding that the JCP did not convene its meeting for months when he was present in Pakistan and then scheduled three such meetings when the senior puisne judge was on sanctioned annual leave.

The letter stated: “It suggests that the CJP does not want me to be physically present, which is illegal and unconstitutional.”

It went on to state that “the CJP did not schedule meetings when the vacancies in the SC occurred, but all of a sudden wants to make wholescale appointments to the SC hurriedly. To appoint five judges means more than a third of the SC, which the CJP wants to pack during notified-gazetted vacations, and by avoiding the participation of all members.”

The CJP wants to fill-in an ‘anticipated’ vacancy too. Article 175(8) of the Constitution does not permit this. Nor does the Constitution permit that the CJP alone propose names, which is the sole prerogative of the JCP, the letter said. It added that the anticipated vacancy will occur on the retirement of Justice Sajjad Ali Shah. He is being called upon to choose his own successor. “This is unconstitutional. Pakistan is not a kingdom of yore in which kings decided their successors. If this is permitted then the CJP may next call a meeting of the JCP to fill-in ‘anticipated vacancies’ that will occur in respect of all the judges of the SC, including those retiring after him.”

Justice Isa said that the matter of appointing judges to the superior courts requires utmost care and due deliberation as it is a delicate matter.

Addressing the CJP, the judge said: “Please do not ridicule the JCP and your nominees by contravening the Constitution. Restricting the JCP to consider only the CJ’s pre-selected nominees is inappropriate. The JCP deserves to be treated with respect and consideration by its chairman.”

The letter said that the CJP admits to having acted unfairly as he says that he decided to consider only a certain number of judges, and this he did arbitrarily. He informs that he considered three judges from Peshawar, six from Lahore till and 12 from Sindh. This does not stand to reason because the Lahore High Court is a much larger than the High Court of Sindh; neither the same number were considered nor of the same proportional ratio.

Justice Isa deplored that “CJP further discriminates by excluding for his kind consideration Chief Justice and Judges from the Balochistan High Court and the Chief Justice and Judges from the Islamabad High Court. The prevailing sense of deprivation of the peoples of these areas is being further aggravated. With utmost respect, it appears that CJP has resorted to reverse engineering by first deciding who all to nominate and then find some pretext to justify his nominations.”

He stressed that need that “all appointments must be made in accordance with the Constitution, on the basis of a predetermined and non-discriminatory criteria. And above all without any impression of favouritism. The Constitution does not grant the CJP any powers additional to those of the other members of the JCP; the CJP is only designated as the Chairman of the JCP.”