ISLAMABAD: By a majority of five to four, the Judicial Commission of Pakistan (JCP) on Wednesday approved the elevation of a judge who was fifth on the seniority list of Sindh High Court to the Supreme Court.

The decision drew strong reaction from the premier lawyers’ body, the Pakistan Bar Council (PBC), which called a general body meeting of all provincial bar councils and associations on Aug 5.

During the over-two-hour-long session, which was presided over by Chief Justice of Pakistan Gulzar Ahmed, the JCP finally gave the nod to the nomination of Justice Mohammad Ali Mazhar in a tense atmosphere to fill the vacant position of the SC judge.

An informed source said those who opposed the idea during the JCP meeting include Justice Qazi Faez Isa, Justice Maqbool Baqar, former SC judge Dost Mohammad Khan and the recently appointed member representing the PBC Advocate Akhtar Hussain. Other JCP members were the CJP, Justice Mushir Alam, Justice Umar Ata Bandial, Attorney General for Pakistan Khalid Jawed Khan and Law Minister Dr Farogh Naseem.

Soon after the decision, PBC Vice Chairman Khushdil Khan called a meeting of the general body for Aug 5 inviting the vice chairmen and chairmen executive committees of all the provincial bar councils and bar association to chalk out a future line of action.

“We totally reject JCP’s decision – a decision which has completely disappointed the legal fraternity and considered the majority decision a violation of the Constitution and the seniority principle as laid down by different apex court judgements,” said Mr Khan while talking to Dawn.

Pakistan Bar Council disapproves of the move, calls general body meeting on Aug 5

The PBC vice chairman called it unfortunate that the JCP proceeded to decide a matter ignoring the resolutions of the premier lawyers’ body as well as the provincial bar councils and the associations. According to him, the decision has been made in haste.

Also, the Sindh Bar Council (SBC), the Sindh High Court Bar Association (SHCBA) Karachi as well as the Lahore High Court Bar Association (LHCBA) resolved to observe a black day on July 28 to oppose the decision of elevating a junior judge from the provincial high court.

On July 13, the JCP had recommended elevation of Balochistan High Court Chief Justice Jamal Khan Mandokhel to the SC but deferred further consideration of Justice Mazhar in the wake of the reservations the legal fraternity had about bypassing the seniority principle.

Both the appointments were made months after the two offices had fallen vacant. Justice Faisal Arab reached superannuation on Nov 4, 2020 and Justice Manzoor Ahmad Malik on April 30, 2021.

With the latest appointment, the total strength of 17 Supreme Court judges is complete.

Justice Mazhar has superseded SHC Chief Justice Ahmed Ali Sheikh, Justice Irfaan Saadat Khan, Justice Aqeel Ahmed Abbasi and Justice Hassan Azhar Mirza according to the JCP decision.

The elevation to the Supreme Court under Article 175-A of the Constitution is always done after weighing the overall antecedents, reputation and expertise in deciding matters, integrity as well as conduct as judge of provincial high courts.

However, a senior counsel while requesting anonymity expressed concern over the move, wondering whether all the senior judges who had not been considered for elevation were not competent enough to meet the criteria.

This is not the first time that a junior judge from high court had been elevated to the Supreme Court. Earlier in April 2018, Justice Muneeb Akhtar, who was fourth on the seniority list of the SHC was elevated by following the precedence when two chief justices namely Saqib Nisar and Asif Saeed Khosa were elevated to the apex court by ignoring the then Lahore High Court chief justice Khawaja Sharif.

According to the apex court ruling in the 2002 Faqir Khokhar case, elevation to the SC is always considered a fresh appointment and therefore any judge even a junior from a particular high court can be elevated to become judge of the apex court.

The SHC Bar Association has been raising voice for framing more transparent criteria for elevation of judges to the apex court by soliciting views of all stakeholders, including the bar associations, and demands that until then the JCP should adhere to the seniority principle.

Published in Dawn, July 29th , 2021