Justice Isa seeks ‘transparent process’ in judges’ appointment

ISLAMABAD: Justice Qazi Faez Isa on Saturday called for a “transparent process” in the appointment of judges to dismiss the “impression that outsiders or extraneous considerations determine who should, or should not, be a judge”.

“Any impression that outsiders or extraneous considerations determine who should, or should not, be a judge must be dispelled. A necessary concomitant to this is a transparent process in the appointment of judges. To unilaterally nominate judges and force through their selection, often times by a single vote, does not accord with the spirit of the Constitution,” said Justice Isa in a nine-page letter he wrote to the chairman and members of the Judicial Commission of Pakistan (JCP).

The chief justice serves as the chairman of the JCP and includes judges of the apex court, the law minister, the attorney general and a member of the Pakistan Bar Council. A copy of the letter was also sent to former chief justices Saqib Nisar and Gulzar Ahmed.

The judge wrote the letter to raise “legitimate concerns” of a few members of the JCP and concerns pointed out by the different lawyers' associations through various resolutions that were ignored.

Justice Isa urged the JCP to restore the public confidence in the judiciary as without it, the decisions of the Supreme Court lack "authority and credibility”.

He added that Justice Naseem Hassan Shah's belated confession of wrongdoing on television should be commended but noted that it “does not bring back to life a prime minister who on his orders was put to death”.

The judge noted that when “tried and tested longstanding practices” are disposed of, then without a substitute then it “encourages those desirous of career progression to cultivate relationships (jobbery); and, when this happens, it is an abomination”.

“A judiciary, perceived by the public not to be independent, lacks public respect and requisite moral authority, and stands diminished,” said Justice Isa.

Early in his letter, Justice Isa explained the Constitution and the role of the superior court judges. He also highlighted the long-standing practice of the appointment of judges to the Supreme Court.

“The longstanding practice was to appoint Chief Justices of the High Court to the Supreme Court, because through their tenure in office they would have gained valuable judicial experience covering a multitude of legal subjects and would also be conversant with the multifarious issues and problems of judicial administration,” said Justice Isa.

The judge also explained that a chief justice of a high court was elevated to the top court as they had the experience in dealing with the provincial executives on the “budgetary and other administrative matters”. He added that if a chief justice of a high court was overlooked, then it was “always done after due deliberation and for a good reason” and in his place, a senior-most judge of the high court would be elevated.

He added that the “longstanding practice" continued even after the JCP was constituted by the Constitution. Before the formation of the JCP, an apex court judge was appointed by the government in consultation with the chief justice of Pakistan. He added this role was reduced with an amendment.

Justice Isa stated that with the establishment of JCP, the role of the CJP was reduced and the selection process was “made inclusive, and provided for the participation of different stakeholders, and matters were made open and transparent”.

Justice Isa noted that the “longstanding practice” was discontinued by former chief justices Saqib Nisar and Gulzar Ahmed. “This was done by creating an artificial polarity, seniority versus merit; the Constitution 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," he said.

"This resulted in the bypassing of chief justices and senior judges of the high courts. At times it was also asserted that their chosen nominee had decided a very large number of cases, but we all 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,” said Justice Isa.

The former Balochistan high court chief justice noted junior judges are elevated “before they are ready”, then it does not serve their “interest nor that of the institution”. He added that such justices are deprived of the experience they may get from holding the position of chief justice of a high court.

He also added that by overlooking senior judges a “public perception was developed that they were not competent; which undermined both their credibility and that of the institution”.

Justice Isa stated that, in the case of the elevation of a junior judge of the Sindh High Court, Justice (retd) Saqib Nisar had claimed that the high court chief justices and senior judges did not want to get elevated. He added that the judges in question had no idea about being bypassed and neither had they declined the elevation.

On former CJP Gulzar Ahmed, Justice Isa stated that he had bypassed the longstanding practice by claiming that the senior judges “did not meet the merit test”. However, Justice Isa said that he failed to explain “the criteria and the methodology to gauge merit”. He also noted that a few weeks later the same senior judges were proposed for elevation by the same CJP.

Justice Isa said that the chairmen of the commission unilaterally selected judges for elevation and the members were asked to “either approve or reject” their choice, which he believed was not per Article 175A.

He also gave the reference to the letters he had written to the then chief justices of the violation. He also highlighted that the Justice (retd) Maqbool Baqar had raised concerns of “court picking” but they were ignored.

Justice Isa noted that meetings of the JCP cannot be held in secrecy, adding that whenever in-camera proceedings are required then the Constitution makes it clear.

“In any case, why is there a need for secrecy? Are the people not entitled to know the selection process for the appointment of judges who will sit to determine their future?” asked Justice Isa.

Justice Isa also raised objections to the appointment of the registrar of the Supreme Court, who serves as JCP secretary, from the Prime Minister's Office with PTI Chairman Imran Khan in power.

“Eyebrows were raised when the incumbent came directly from the Prime Minister’s office, particularly when cases in which the Prime Minister (now former Prime Minister) and/or his political party were considered to be interested in, were immediately fixed for hearing, including those under office objections and unnumbered, but cases against them were belatedly fixed or are yet to be fixed for hearing,” said the judge.

Justice Isa blamed the registrar for undermining the integrity of the Supreme Court and creating the perception that it is interested to hear certain cases but buries others.

“This has diminished the institution and mocks the oft-repeated maxim that justice must not only be done but be seen to be done. A borrowed bureaucrat holding the offices of the Registrar and Secretary expresses no confidence in the competence and integrity of thousands of judicial officers and hundreds of Supreme Court employees, and raises the question as to whether not even one amongst them is competent to be appointed to these positions,” said Justice Isa.

He also stated that the secretary “manipulates matters” via different methods such as convening meetings when all members are not available. He mentioned two instances, one when he was sick with COVID-19 and unavailable as he was out of the country, where the JCP was called.

Justice Isa also noted that the incumbent registrar was “unfamiliar with the Constitution” and lacks “requisite knowledge to perform his duties under the Supreme Court Rules, 1980”.

He concluded the letter by welcoming CJP Bandial’s chairmanship of the first meeting and hoped that his concerns are addressed in future meetings.