ISLAMABAD: Justice Qazi Faez Isa has questioned the procedure of appointment of superior court judges and highlighted the need for developing appointment criteria.

“To unilaterally nominate judges and force through their selection, often times by a single vote, does not accord with the spirit of the Constitution,” Justice Isa said in a nine-page May 25 letter he wrote to Chief Justice of Pakistan (CJP) Umar Ata Bandial as well as members of the Judicial Commission of Pakistan (JCP).

Justice Isa’s letter followed a similar letter written by Pakistan Bar Council (PBC) representative in the JCP Akhtar Hussain who had requested the Supreme Court chief justice to reconstitute the meeting of the JCP Rules Committee on an urgent basis to formulate and finalise the criteria for the appointing superior court judges.

The Supreme Court judge emphasised upon ensuring public confidence in the judiciary without which its decisions were bereft of authority and credibility.

Unilaterally nominating judges not in accordance with spirit of Constitution, says judge in letter to chief justice of Pakistan

“Any impression that outsiders or extraneous considerations determine who should or should not be a judge must be dispelled,” he said.

In the letter, Justice Isa stated that when tried and tested longstanding practices were dispensed without substituting it with criteria for selecting judges, it encouraged those desirous of career progression to cultivate relationships (jobbery) and when this happened, it was an abomination.

A judiciary perceived by the public not to be independent lacked public respect and requisite moral authority and stood diminished, the letter said, adding that “belated public confession (on television) of wrongdoing by late Justice Naseem Hassan Shah might be commended to an extent — better late than never — but does not bring back to life a prime minister (Zulfikar Ali Bhutto) who on his orders was put to death”.

The letter also cited a quote of Justice Maqbool Baqar, former senior member of the commission, who had once asserted that there was court packing going on but his most serious concerns were not addressed.

To consider whether a judge should be taken away from the Lahore High Court, where there were hundreds of thousands of pending cases, to the Supreme Court, where there were still only thousands, and in respect of a vacancy which had existed for some time, the JCP meeting was not urgent as to justify holding it during the summer vacations of the Supreme Court.

The letter accused former chief justices of Pakistan, Saqib Nisar and Gulzar Ahmed, for discarding the past practice of appointing judges by creating artificial polarity — seniority versus merit — when the Constitution did not stipulate this.

Saqib Nisar sought to justify the nomination of a junior judge to the Supreme Court from the Sindh High Court by asserting, but without proof, that neither the then CJP nor any of the senior judges wanted to be appointed to the Supreme Court.

Likewise Gulzar Ahmed also bypassed the Sindh High Court chief justice and senior judges by saying that they did not meet merit without having first established the criteria and the methodology to gauge merit.

Justice Isa, however, was all praise for the incumbent CJP, stating that the April 19, 2022 JCP meeting was a clear departure from the manner in which earlier meetings, sowing discord, were held.

Justice Isa also expressed the confidence that the future meetings of the commission would be conducted after redressing the concerns he had shared, including replacement of Registrar Supreme Court who also happened to be the JCP secretary, with an independent minded and competent person in compliance with the constitutional requirement of separation of the executive from the judiciary.

The registrar has undermined the integrity of the Supreme Court by creating the perception that it was interested in hearing certain cases but buried others.

This has diminished the institution and mocked the oft-repeated maxim that justice must not only be done but be seen to be done, Justice Isa said.

A borrowed bureaucrat holding the offices of the registrar and secretary expressed no confidence in the competence and integrity of thousands of judicial officers and hundreds of Supreme Court (SC) employees and raises the question as to whether not even one amongst them was competent to be appointed to these positions, the letter said.

Published in Dawn, May 29th, 2022