Legal fraternity requests CJP Ahmed to defer judges' elevation to his successor

• SCBA at its 4th meeting discusses issue of judges' appointments in depth. 
• SCBA urges Judicial Commission of Pakistan to refrain from considering same judge's nomination twice.
• Law expert Saad Rasool rejects criticism on elevation of Justice Ayesha.

ISLAMABAD: The Supreme Court Bar Association (SCBA) has asked Chief Justice Gulzar Ahmed to defer the matter of the apex court judges' elevation to the future top judge of Pakistan, The News reported.

The legal fraternity also urged the Judicial Commission of Pakistan (JCP) to avoid considering the same judge's nomination twice and make sure that the principles and past traditions are adhered to in this regard.

The demands were put forward at the 4th meeting of the SCBA's executive committee, presided by the association's president, Muhammad Ahsan Bhoon, at the Supreme Court on Thursday.

The meeting was attended by Pakistan Bar Council (PBC) Vice Chairman Kush Dil Khan, PBC Executive Committee Chairman Muhammad Masood Chishti, and PBC Member Tahir Nasarullah Warraich as special guests.

Keeping in view the proposed meeting of the JCP, slated for January 6, 2022, the meeting discussed the issue of judges' appointments in depth.

The meeting, in its resolutions, passed unanimously, brought into the notice of Chief Justice Gulzar Ahmed his own well-founded principle that no chief justice should commence the procedure for elevations to the Supreme Court if his tenure is nearing its end.

The house, therefore, requested the CJP that because his tenure was approaching its end, it would be appropriate if he defers the matter of elevation to the Supreme Court to the forthcoming chief justice of Pakistan.

CJP Gulzar Ahmed will retire on Feb 2, 2022, and senior-most judge Justice Umer Ata Bandial will take oath as the 28th chief justice.

The meeting considered the fact that as per past traditions, the nomination for elevation (if not approved) cannot be considered twice as it gives the impression of nepotism); hence the house anticipated that the chief justice and the Judicial Commission will refrain from considering the name of the same judge twice, and will ensure adherence to this principle as well.

In September this year, the elevation of Justice Ayesha Malik of Lahore High Court to Supreme Court had remained inconclusive due to an equal split after four members of the JCP opposed while four others supported her elevation.

The JCP had deferred the matter and recently, Chief Justice Gulzar Ahmed has again proposed the elevation of Justice Ayesha A Malik as judge of the Supreme Court. In this respect, the CJP convened the JCP meeting on Jan 6 wherein, the matter of elevation will be deliberated upon.

The house resolved and demanded that amendments to Article 175-A and Article 209 of the Constitution should be made, wherein there should be only one forum empowered for the appointments, elevations, or removal of Judges.

It was unanimously adopted that composition of the Judicial Commission must also be reviewed wherein at least two representatives from bar bodies and two representatives from opposition parties must be given proper representation whereas the representation of two Supreme Court Judges in the JCP is more than sufficient i.e. Chief Justice and Senior Puisne Judge, alongside the Attorney General for Pakistan and Federal Law Minister.

The house resolved that the same criteria must be adopted for the elevations to high courts wherein Chief Justice of Pakistan and a senior judge of the respective high court will be taken on board alongside one member of bar council concerned and one member of the Pakistan Bar Council.

The house unanimously resolved that the legal fraternity didn’t have any personal agenda which means neither are they against anyone nor in favour of anyone, rather want strict adherence to the rule of law and principle of seniority, as such, nomination for the elevation of a junior judge to the Supreme Court was received with displeasure, hence was disapproved by the house.

Similarly, the house, while congratulating the new member-elect of the JCP, Justice (retd) Sarmad Jalal Osmani, expected of him that he will maintain the principle of seniority as resolved by the SCBA as well as PBC.

The house also resolved to form a parliamentary commission, duly empowered to review the appointments or elevations made from 2009 to 2013 on the basis of seniority, merit, competency integrity and capacity to work, whether the same be in the high courts or in Supreme Court and if they do not fulfil such parameters, they should be removed from their offices.

The meeting resolved to fully participate in the meeting, called by PBC on January 3, 2022, to determine their future line of action.

‘Another agenda’

On the contrary, senior law expert Saad Rasool has said that Justice Ayesha A Malik is a very competent and qualified judge and her elevation to Supreme Court will be of great importance.

"She will be a good inclusion in the Supreme Court and will be very much helpful in apex court decisions in civil, constitutional as well as corporate side," he told The News.

As far as the stance so far adopted by the PBC and SCBA about seniority principle, he said that it was not for the first time that junior judges are being elevated to Supreme Court.

He recalled that during the past ten years and after the 18th Constitutional Amendment when judicial appointments were being made under Article 175-A of the Constitution and since then many junior judges have been elevated to Supreme Court.

He said that Justice Mian Saqib Nisar and Justice Asif Saeed Khosa being the junior judges of Justice Khwaja Sharif were elevated to Supreme Court and later they became Chief Justices of Pakistan while Justice Khwaja Sharif remained as Chief Justice of Lahore High Court.

Similarly, he said that recently Justice Mazahir Ali Akbar Naqvi has been elevated to the SC from the LHC.

"Why did the PBC and SCBA not object that time but right now making hue and cry over the appointment of Ayesha Malik, Saad Rasool questioned.

Right now apart from the seniority principle matter, there is some another agenda at play on the part of these people which needs to be inquired into, he added.