ISLAMABAD: As three seats for Supreme Court judges lie vacant, senior apex court judge Justice Qazi Faez Isa has again strongly advocated for the elevation of high court chief justices to the country’s superior court in the absence of an objective criteria.
It was revealed on Saturday that Justice Isa, a member of the Judicial Commission of Pakistan (JCP), has penned a letter to the JCP Chief CJP Umar Ata Bandial regarding the matter.
The letter underscored potential advantages regarding the appointment of chief justices of high courts as apex court judges. Justice Isa also provided reasons as to why junior high court judges should not be elevated to the SC.
A copy of the letter has been sent to all members of the JCP, including to two former chief justices.
The previous six appointments to the Supreme Court were made without adhering to the seniority principle. Currently, there are three vacant posts for apex court judges, but the formal process of appointment has yet to start.
As per a senior representative of the bar, the majority of JCP members agree with the bar’s view that if there are no solid reasons then senior judges, including chief justices, should be considered for the appointment of SC judges, otherwise there will be a perception of ‘court packing’.
“Superior court judges are required to take an oath to preserve, protect and defend the Constitution. An important component of this oath is to ensure that the people’s fundamental rights guaranteed by the Constitution are not trampled upon. Therefore, an important factor to consider in the selection of superior court judges is also whether they have the requisite ability and determination to resist and repel unconstitutional acts, and the courage to preserve, protect and defend the Constitution,” read the letter penned by Justice Isa.
The senior judge also noted in his letter that the long-standing practice was to elevate chief justices of the high court to the Supreme Court, as they would have gained valuable judicial experience covering a multitude of legal subjects through their tenure. “They would also be conversant with the multifarious issues and problems of judicial administration,” he added.
However, Justice Isa claimed that the practice was discarded by two former CJPs, Mian Saqib Nisar and Gulzar Ahmed. The apex court judge maintained that this was done by creating an artificial polarity – seniority versus merit.
“The Consultation does not stipulate this, these chief justices then assumed that seniority and merit were mutually exclusive, and by applying their self-justifying specious logic, unilaterally nominated candidates, whose merit they proclaimed. This resulted in the bypassing of chief justices and senior judges of the high courts,” Justice Isa wrote.
He remarked that at times it was also asserted that the chosen nominee had decided upon a large number of cases. “But we know that the work load on the judges of the Supreme Court is less than that on the judges of high court, which negates this sophistry,” he added.
Justice Isa stated that appointing competent but junior judges to the apex court before they were ready will neither serve the interest of the judges being appointed nor of the institution.
“These junior judges are deprived of the opportunity to serve as Chief Justice of the high court, and resultantly do not acquire the rich experience gained from having held this office. Consequently, when the Chief Justice and senior judges were bypassed a public perception developed that they were not competent; which undermined both their credibility and that of the institution,” the letter further stated.
Justice Isa said that the natural human feelings of despondency and dejection set in amongst those who were bypassed without good reason, and which adversely affected their desire to work and the quality of their decisions.
The SC justice also questioned the appointment of a junior judge of the Sindh High Court by former CJP Saqib Nisar.
Justice Isa upheld that eagerness for the appointment is not an endearing quality, and may constitute a disqualifying factor.
Rebutting the claims of former CJP Nisar, Isa stated that Article 206(2) of the Constitution stipulates that, “A Judge of the High Court who does not accept appointment as a Judge of the Supreme Court shall be deemed to have retired from his office.’ Therefore, to assert (and to do so without proof) that they had declined was disingenuous.”
Justice Isa also accused former CJP Gulzar Ahmed of failure to implement robust strategies for gauging merit. The former CJP allegedly bypassed the chief justice of the Sindh High Court and senior judges, by stating that that they did not meet the merit test, without having first established the criteria and the methodology to gauge merit.
However, Justice Isa claimed, that a few weeks later the ex-CJP proposed the same chief justice for appointment as an ad-hoc judge to the Supreme Court. “Had he now miraculously passed the elusive merit test?” the judge questioned.
