Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah — both Supreme Court judges — have urged Chief Justice of Pakistan (CJP) Umar Ata Bandial to call a meeting of the Judicial Commission of Pakistan (JCP) for the appointment of judges on the five vacant SC seats and "avoid unwanted rumours of petty politics and lobbying", it emerged on Saturday.

In a letter dated October 7, they explained that a JCP meeting should "automatically be scheduled" at the earliest in case of any vacancy in the apex court to fulfil the constitutional obligation under Article 175A(8) of the Constitution that states: "The commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be."

The judges said that it was the responsibility of every JCP member to ensure vacancies in the courts were timely filled out and any inordinate delay in this would be "unfortunate and undesirable".

The letter said there were currently five vacancies in the apex court since February, adding that they had "time and time again requested" the CJP to hold a JCP meeting to fill the vacancies but their meetings with him on the subject "ended in vain".

Justice Masood and Justice Shah pointed out that Justice Qazi Faez Isa, too, had written to the CJP on September 28 regarding the same issue.

"It is important to underline that delay in filling the vacancy gives rise to unwanted rumours of petty politics, lobbying and quid pro quo appointments, which not only undermines the institution but also seriously impairs the neutrality and the transparency of the appointment process," the letter highlights.

The judges said they had taken an oath under the Constitution to protect and defend it, and recalled that the legal position outlined by the apex court in the 1996 Al Jehad Trust case stated that permanent vacancies in judicial offices should be filled in "immediately and no later than 30 days".

"The ordinate delay of almost nine months in this case must be urgently addressed first," the letter stresses, adding that the judges had already suggested that the five high court chief justices should be considered for the vacant positions or consider the top two judges from each high court and then conduct a vote in the next JCP meeting.

The judges said that the above were the best options for moving forward until more sophisticated selection criteria and constitutionally compliant rules could be framed.

Justice Isa's letter

In his letter to the CJP last month, Jutsice Isa had expressed concerns that despite the pendency of over 50,000 cases, five vacancies of judges of the top court were still vacant.

He pointed out that the first seat of the SC fell vacant after the retirement of former CJP Gulzar Ahmed on February 1 when Justice Bandial took over as the CJP.

Justice Qazi Mohammad Amin stood retired on March 23, Justice Maqbool Baqir on April 4, Justice Mazhar Alam Khan Miankhel on July 13 and Justice Sajjad Ali Shah on August 12.

“Over 50,000 cases have accumulated in the Supreme Court. The chief justice and 16 judges constitute the Supreme Court. However, there are five vacancies in the Supreme Court, which work out to 726 lost days. It pains me to state that cases filed in the Supreme Court are unlikely to ever get decided if the vacancies are not filled in.”

The letter added: “People of Pakistan invested heavily in the Supreme Court which employs about 700 staff and has a considerable budget. Therefore, it is not understandable why the Supreme Court is working at a significant 30 per cent reduced capacity. Every passing day that the five vacancies remain unfilled adds to the existing mountain of cases, threatening to render it insurmountable, which may leave the Supreme Court dysfunctional. The same staff and money which would serve a full court also serve a truncated one, therefore, there is a needless haemorrhaging of resources.

“The Constitution requires that expeditious justice be ensured and this responsibility falls upon the Supreme Court, of which you are the chief justice. We must not let down the people of Pakistan, erode their confidence in the Supreme Court and continue to waste their hard-earned money,” said the letter.

Justice Isa had urged the CJP to “please convene a meeting of the commission immediately to enable the commission to nominate judges of Supreme Court.”

It may be mentioned that the JCP on July 28 rejected five nominations of the CJP for five vacant seats of the apex court by a majority of five to four votes as the government members — the law minister and attorney general — also opposed these nominations.

Justice Bandial expressed his grievance with the ruling coalition during the opening speech of the new judicial year 2022-23, questioning whether an adverse decision from the court justified what he called the government’s ‘unprecedented’ step to refuse support for judges proposed by him before the JCP.

The CJP mentioned the July 26 apex court decision, which declared Chaudhry Parvez Elahi as the chief minister of Punjab in the July 22 run-off poll, observing that the displeasure of the federal government on the decision became evident two days later at the JCP meeting on July 28.

However, Justice Isa and Justice Masood reacted to the CJP speech and said Justice Bandial had undermined the JCP by refusing to accept its decision on the elevation of judges.