ISLAMABAD: The controversy surrounding developments during Thursday’s closed-door meeting of the Judicial Commi­ssion of Pakistan (JCP) deepened further on Friday when Chief Justice of Pakistan (CJP) Umar Ata Bandial relaxed the commission’s rules and ordered the release of over-two-hour-long audio recording of the session to public.

Prompting the release of the recording were the letters issued by two JCP members — senior puisne Supreme Court judge Justice Qazi Faez Isa and Justice Sardar Tariq Masood — both of whom claimed the meeting had disapproved the nominations of judges, proposed by the CJP, for elevation to the top court.

But the press release issued by the apex court’s public relations officer on Thursday stated the meeting 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, if he considered appropriate.

On Friday, a fresh press release was issued — seemingly meant to put an end to the controversy — announcing the release of the JCP meeting audio recording. “This infighting among the judges will only bring a bad omen to the institution that delivers justice,” lamented a senior counsel on condition of anonymity, saying that in 1997, a CJP was isolated, vilified, physically assaulted and ousted. “The resemblance with today is uncanny.”

The JCP had met to consider 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.

CJP takes ‘unprecedented’ decision in bid to end controversy created by Justice Isa, Justice Masood’s letters

The audio recording was released after Justice Masood, who was part of the nine-member JCP, in a letter to other commission members, including the CJP, highlighted the need for putting out factual and correct minutes of the meeting, in which details of observations and discussions of each member should be mentioned. The audio recording discussed the credentials of each nominee and the judgements rendered by them.

“The correct minutes of the meeting, if made publically, will stop needless rumours,” Justice Masood wrote in his two-page letter.

In a similar letter written to other JCP members, Justice Qazi Faez Isa had also highlighted that the acting secretary, who had attended the meeting in the absence of the JCP secretary, should immediately release this decision to the media, which would also stem unnecessary speculation and misreporting, as the meeting was held behind closed doors. It was expected that the detailed minutes would accurately reflect all that transpired.

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Soon after Justice Masood’s letter became public, a press release was issued on the instruction of the CJP, who is also JCP chairman, in defence of the version contained in Thursday’s statement, which has now been disputed by the two judges.

“A resulting controversy has therefore arisen in the print and electronic media. In these exceptional circumstances the JCP chairman has been pleased to relax the restriction under Rule 5(4) of the JCP Rules, 2010 and has directed for the audio recording of the JCP proceedings of July 28, 2022 to be made available on the official website of the apex court. The audio recording from time slot 1:29:45 to 1:38:08 contains the statement by Attorney General for Pakistan (AGP) Ashtar Ausaf that the matters under discussion should be deferred to frame appropriate rules. He did not assess or reject the merits of any of the high court judges proposed for appointment to the apex court. As a result, five members of the JCP supported the deferment of the meeting as reported in the press note of Thursday,” the fresh statement said.

The recording indicates the AGP did request for a deferment of the issues for the time being, but at the same time also suggested that JCP rules be framed urgently by developing a system of checking or ticking the boxes of the data provided, which will help discourage debates on issues in future so informed decisions could be made properly. In the audio tape, the AGP can be heard saying “when we talk of seniority, ability, integrity and temperament, we should also consider whether the appellate courts have appreciated their judgements or overturned them”.

The AGP had also opposed the idea of discussing nominations on vacancies that would occur next month, saying that one should cross the bridge when one reached there. He also highlighted the need to consider the input of bar about judges instead of deciding the matter of elevation in haste.

“While nominating judges we should also consider how much time they will have in the Supreme Court to decide matters,” he said, pointing out that if they had only three years, then it would not be enough.

Justice Isa, who spoke in the end after the CJP, expressed surprise that while the two senior-most CJs of the high courts could sit in the Supreme Judicial Council (SJC), they were not fit to be elevated in the Supreme Court. “What an irony?” he remarked.

“What does a CJ of the high court bring to this court? [He] brings experience as a CJ. What I have learnt as CJ, I would never have learned as a judge. It is altogether a different ball game,” he emphasised.

Justice Isa also said the CJP had no unilateral power to nominate anybody. “We all are equal and can nominate and all of us carry one vote to decide. This is not about winning or losing but a question of future. You are bypassing chief justices,” Justice Isa regretted.

However after Justice Isa spoke, the CJP said: “let’s rise” and left the room, leaving Justice Isa and Justice Sardar Tariq wondering whether the meeting had ended abruptly and what would happen to the minutes of the meeting.

Read: Why transparency in judicial appointments is critical

During the meeting, the CJP also coined an idea regarding increasing the number of judges in the Supreme Court and saying that if everybody cooperated, he could approach the government for amending the necessary laws to have a couple of judges more in the apex court, especially in view of a backlog of cases. “We will be short of five judges next month and we have 50,000 cases,” the CJP pointed out.

Justice Tariq Masood’s letter

Justice Tariq Masood who gave a detailed overview on the competency, integrity and capacity of each nominees, however, disputed the facts mentioned by PRO in Thursday’s press release.

Justice Masood said he came to know through the newspapers that a press release was issued by Supreme Court’s PRO giving a totally different version of events from what actually had occurred during the meeting.

Narrating the events, the letter recalled when the meeting started on Thursday, the CJP described the credentials of his nominees and then requested Justice (retd) Sarmad Jalal Osmany – a member of the commission, for his views regarding the nominations who endorsed four nominees but disapproved the nomination of Justice Naimatullah Phulpoto.

Thereafter, Justice Sajjad Ali Shah and Justice Ijazul Ahsan fully endorsed all the judges nominated by the CJP for their appointment as judges of the Supreme Court.

On his turn, Justice Sardar Masood said, after discussing the seniority principle referred to a comparative analysis of the nominated judges with superseded senior judges.

“I also recommended that Islamabad High Court Chief Justice Athar Minallah, who was second in seniority amongst the chief justices of all the high courts, be considered and stated that no one has raised a finger against his integrity, competency etc,” the letter said, adding he did not approve three nominated judges of the Sindh High Court and one judge of the Lahore High Court and requested that the nomination of the chief justice of Peshawar High Court be deferred.

Law Minister Azam Nazeer Tarar, Attorney General for Pakistan Ashtar Ausaf – who joined the meeting through a video link from the US – and Pakistan Bar Council (PBC) representative Akhtar Hussain also agreed with his recommendations.

Justice Isa also agreed with this and when he was in the middle of giving the reasons for his disapproval, when, without dictating the decisions of the commission and formally ending the meeting, the CJP stood up and left the meeting room, uttering the word ‘adjourned’. He was followed by Justice Ijazul Ahsan.

Published in Dawn, July 30th, 2022