Justice Omar Sial recuses himself as constitutional benches formed at Sindh High Court

Justice Omar Sial of the Sindh High Court, who was nominated among nine others judges of the high court for the constitutional benches ordered by the Judicial Commission of Pakistan (JCP) under 26th constitutional amendment, recused himself from constitutional benches constituted for two months, observing that the opinion of the chief justice of the province should have primacy in the selection of judges.

Justice Sial observed that when a substantial majority of the JCP from the executive become instrumental in forming benches in the courts, righty or wrongly, a dangerous perception is created of executive interference in the judiciary and this erodes the very fabric of democracy.

Issuing a letter to the committee chairman of constitutional benches, Justice Mohammad Karim Khan Agha, Justice Sial said his senior colleagues and the chief justice of the province in their wisdom dissented on the nominations made and he also appreciated that their dissent was not person-specific but was a matter of principle.

He further said that in his opinion each of his colleague judges should have been assigned the task of addressing constitutional violations, and if that is not possible the election of these benches should be seniority-driven unless there are reasons not to abide by the same.

Justice Sial wrote that the chief justice and senior judges were of the view that some of his other colleagues would better fit on benches dealing with the cases assigned to the constitutional benches.

He said senior colleagues with their experience, knowledge and wisdom are best positioned to decide which judge should be on which bench and in this regard the wisdom of the chief justice of Sindh should be the most essential criterion. He said a judge is best judged by his peers and this also ensures the trichotomy of power essential for democracy.

He said nobody but the chief justice of the province knows his judges best and each chief justice has the best interests of the institution as a priority; therefore, his or her advice should have extra weight.

Justice Sial wrote that he is mindful that the JCP is the forum for making such decisions and told the chairman of the constitutional benches that he will understand that whether one wishes to be a member of a bench or not remains a judge’s prerogative. He also congratulated Justice KK Agha on becoming the chairman of the committee constituted for the constitutional benches and said it is a well-deserved appointment.

The JCP had earlier considered the formation of constitutional benches in High Court of Sindh and approved the names of following judges with a majority of 11 to 4 for a period of two months.

The judges included Justice Mohammad Karim Khan Agha (head of the constitutional benches), Justice Mohammad Saleem Jessar, Justice Omar Sial, Justice Yousuf Ali Sayeed, Justice Abdul Mubeen Lakho, Justice Zulfiqar Ali Sangi, Justice Ms. Sana Akram Minhas, Justice Khadim Hussain Soomro and Justice Arbab Ali Hakro.

Meanwhile, the SHC has issued a revised roaster sitting of judges after the constitution of constitutional benches. According to the new roaster, Justice Mohammad Karim Khan Agha, Justice Abdul Mubeen Lakho and Justice Ms. Sana Akram Minhas will hear all constitutional petitions at the Karachi principal seat. Justice Mohammad Saleem Jessar and Justice Zulfiqar Ali Sangi at the Sukkur bench, and Justice Yousuf Ali Sayeed and Justice Khadim Hussain Soomro at the circuit court of the SHC inn Hyderabad.

Justice Mohammad Saleem Jessar will also hold a constitutional division bench with Justice Arbab Ali Hakro on every Wednesday and Thursday at the Larkana circuit court, while the constitutional bench at Hyderabad will hold DB at the circuit court Mirpurkhas on every Tuesday.

The SHC also issued a circular stating that all the matters of constitutional benches (falling under sub-paragraph (i) of paragraph (c) of clause (1) of Article 199 of the Constitution shall be heard by the respective constitutional bench to be nominated by the committee as provided under paragraph (4) of the Article 202A of the Constitution.

The circular clarified that in pursuance of paragraph (5) of the Article 202A of the constitution all relevant cases specified thereunder shall be transferred to the respective constitutional benches.