Supreme Court’s Justice Qazi Faez Isa has suggested that the meetings of the Judicial Commission of Pakistan (JCP) should be open to everyone instead of in-camera ones —as is currently the practice — to ensure transparency in the appointment of the superior judiciary.
“It will be even better for transparency of the proceedings that the meeting of the commission should be open for everyone. The benefit of this would be that speculations would come to an end,” Justice Isa said during the JCP meeting held on January 5 on the appointment of six additional judges of the Peshawar High Court — the minutes of which are available with The Express Tribune.
The judge further said this was important because on several occasions he had noted that the minutes of the meetings were not accurately recorded.
He further said he had written letters to this effect but no response was received.
Justice Isa maintained that the commission’s secretary did not respond to the letters because he had come from the federal government.
“He [commission’s secretary] is an illegal appointee, technically speaking.”
Justice Isa observed that discussions at the commission had been long, tedious, acrimonious, and hung on a vote or two.
He added that he did not think that consultation, in the true sense, was taking place.
“Consultation means I hear you and you hear me. When you say something meaningful or something which I don’t agree [with], I respond. A person may not agree with the particular concern but a person must respect that man.”
The judge observed that it was extremely disrespectful and discourteous to pretend as if the gentleman had not spoken. “You may express that I don’t agree with you because of this, that and the other [reason].”
Justice Isa requested that audio recordings of the meeting should be available for the members as well as everyone else.
The senior judge also questioned the appointment of a civil servant as the SC registrar on deputation.
“A bureaucrat should know that the judiciary has been separated from the executive now. A member of the executive cannot sit here. He should have not accepted this appointment and I have written several letters on this issue.”
Justice Isa said he needed to see copies of petitions, statements or legal opinions of bar nominees to assess their competence but they were unavailable.
He explained that there were instances where a lawyer did not advance their arguments even if their case was very good. “The court decides the case and passes a very good judgement. The credit of such judgment cannot be given to the council.”
Similarly, in some instances, a lawyer advances very good arguments in a weak case, which was ultimately dismissed. “However, the lawyer should not be at a disadvantage because of that.” Therefore, the judge stated that the competence of an advocate could not be judged by the verdicts passed in their cases as the judgments reflected the competence of a judge and not of a counsel.
“And if we only have to look at such judgments, we cannot comprehend their [lawyers’] competence but it would reflect the competence of the judge who wrote the judgment.”
The judge said one solution to this issue was that the lawyer’s pleadings be shared with him if he was to assess their professional competence.
Regarding nominees from the cadre, he shared his personal experience when he was the chief justice of the Balochistan High Court.
He recalled that a case of promotion of a judicial officer, who wrote very good judgments, came before him. All his colleagues and advocates informed that the judicial officer did not write the judgments by himself but his stenographer wrote them.
He further noted that a judge might write very good judgments.
However, he added, if the judge took a lot of time and was unable to decide a sufficient number of cases then their competence could not be judged on the basis of their good judgments.
“The judgments also do not show how much time a judge has taken to arrive at the controversy between the parties. Even the number of disposal of cases by a judge does not accurately show their competence.”
Justice Isa pointed out that there was some test, examination and interview for every position all over the world.
He added that if even there were 50 candidates before him and he had to judge their competence, he would place a proposition before them and would ask them to write a judgment.
“The competence of the candidate can be gauged by a judgment written by them considering it on the basis of logic, clarity of mind and how well can they express it. It is entirely different whether [a candidate] agrees with him or not but they would know the process by which he arrives at that particular outcome.”
He also stated that he would be able to assess the candidate as to whether he was logical, sequential and had considered the principles of law.
Justice Isa observed that appointments based on such a mechanism would not only ensure that the judge was disposing of cases quickly but also make correct decisions.
He added that the person appointed after adopting such criteria would be able to decide expeditiously for the litigants who were suffering.
He suggested that it would be appropriate that all the nominations might be withdrawn by the PHC CJ so that we set the criteria once and for all and make appointments on the basis of those. Justice Isa further noted that the issue of seniority is also important as in the present case, it was likely to arise.
“It is also important that the appointment of most competent judges is made for the litigants.”
He observed that it was said that seniority-cum-merit should be the criteria, but in the past, appointments had not been made on merit.
“We should advertise and take exams as is done all over the world. We follow the system of the UK and the same is the case over there. There is no example in the world where such high appointments are made like this. The criteria include a law degree but we know how people manage to get the law degree.”
He added that “one’s sweet wish” should not be the criteria for the appointment because he liked the face or name of someone, they were his friend, or had backed him during some election in the past.
“This principle is un-Islamic, unconstitutional and against the law. Things should not be hanging on one or two votes, proper criteria may be settled and on the basis of those, appointments should be made on merit so that no one can point finger upon anyone.”
He concluded that he was unable to make any recommendation because of the lack of criteria for doing so.
He suggested that at this stage voting may be held that first the criteria were set and then nominations may be made on the basis of those.
“I have no objections on the nominees. The same names may be floated again if they are meeting the criteria set by the commission.”
