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ISLAMABAD: The grievances recently aired by Chief Justice of Pakistan (CJP) Umar Ata Bandial about the role of the federal government as well as the bar have been received with skepticism — with bar leaders sticking to their stance that the seniority principle should be the most crucial criterion in the appointment of judges to the superior judiciary.
A formal reaction to the chief judge’s statement came when Law Minister Azam Nazeer Tarar on Wednesday explained that the Bar had always played a constructive role in promoting democratic values, maintaining impartiality and transparency of the bench, independence of the judiciary and betterment of the justice system in the country.
If the bar had expressed its concern over some aspect of the judiciary, it did so for the betterment of the courts and the judiciary and for the supremacy of law, the minister emphasised.
On the other hand, Supreme Court Bar Association (SCBA) President Muhammad Ahsan Bhoon explained that the bar had never played an impartial role.
He was speaking at the distribution ceremony of plot allotment letters among SCBA members in the Federal Government Employees Housing Authority and SCBA’s joint housing project, Park Road Housing Scheme.
Former additional attorney general Tariq Khokhar, meanwhile, was of the view that the CJP’s speech at the start of the new judicial year elicited a rather guarded response from the law minister, who neither denied nor defended the ‘government reaction’ that derailed the July 28 meeting of the Judicial Commission of Pakistan (JCP) called to elevate five judges to the Supreme Court.
Tariq Khokhar said the minister, however, defended the role of the bar whilst alluding to the trichotomy of powers, suggesting the untenability of judicial overreach.
On Monday, at the opening of the new judicial year 2022-23 at the Supreme Court, the CJP had questioned if an adverse decision from the court justified the federal government’s unprecedented step to refuse support for judges proposed by him before the JCP.
In his address, the CJP had bemoaned that it surprised the court that during the hearing of the Chaudhry Parvez Elahi case, the current and several past office-bearers of the Bar approached the Bench with a request to constitute a full court on the urging of the leader of a political party that was also the principal member of the coalition in the federal government, without any legal grounds.
“The request was unexpected because the bar was pleading a partisan political cause without even being a party to the case,” the CJP had said.
Reacting to Justice Bandial’s address, SCBA President Ahsan Bhoon on Wednesday emphasised that the appointment of judges should always be done on merit while keeping in mind seniority — and for that a defined selection criteria must be developed.
Whereas the law minister urged those in power that considering the traditional role of the superior judiciary, they should endeavour to maintain a congenial environment between the conventional role of the bench and the bar.
He also said the Law Ministry had completed its consultations with all bar councils to draft the Lawyers’ Protection Act that would be tabled before parliament in two months.
Meanwhile, former SCBA president Hamid Khan was of the view that the bar councils and associations should act strictly under the Bar rules while defending its independence instead of becoming a wing or getting attached to a political party or government.
Referring to the CJP’s statement that the apex court will not hesitate to act if the Constitution or institutions were undermined, violated or attacked, Mr Khan said there was nothing wrong with playing this role, as it was the function of the top judiciary to defend the Constitution as well as constitutional institutions.
However, Hamid Khan emphasised that it should be ensured no elevation or appointment of a judge was done in an arbitrary manner, and seniority must be considered as one of the major principles.
Senior counsel Hafiz Ahsaan Ahmad Khokhar stressed that time was ripe to immediately hold a grand dialogue to discuss the working of the justice system in Pakistan, uphold the rule of law for transparent and efficient governance and for the early and time-bounded dispensation of justice at all levels. The dialogue should comprise all the stakeholders -- parliament, judiciary, bars and policy-makers.
After receiving their recommendations, new legislation or suitable amendments should be made to the Constitution and in the ordinary legislation, especially to completely change and overhaul the civil and criminal procedures of the country to ultimately get rid of the colonial and old justice system, he suggested.
For the safe administration of justice, the bench and bar ought to discharge their duties vigilantly and make maximum efforts for a transparent, credible and vibrant justice system, he went on. He was of the view that the Supreme Court was an important constitutional institution, thus its respect and stature should be maintained with high standards of dignity.
At the same time, Mr Khokhar said, the role of the bench and bar was also very important for safe administration of justice, as both were two wheels of the same chariot involved simultaneously in the dispensation of justice.
Published in Dawn, September 15th, 2022
