Two SC judges say CJP undermined judicial commission

ISLAMABAD: Justice Qazi Faez Isa and Justice Sardar Tariq Masood of the Supreme Court said on Thursday that Chief Justice of Pakistan Justice Umer Ata Bandial had undermined the Judicial Commission of Pakistan by refusing to accept its decision on elevation of judges.

Reacting to the speech of the CJP delivered during a full court reference on the eve of new judicial year of the Supreme Court of Pakistan, Justice Isa and Justice Sardar Tariq Masood said that though the CJP had said that constitutional institutions should not be undermined, violated or attacked, he himself had undermined the JCP by refusing to accept its decision.

“Incidentally, the undersigned have been in a minority in a number of other meetings of the JCP yet never once delivered a public address rebuking or casting aspersions on any member of the JCP,” the judges said.

They said that all the members of the JCP, including its chairman, are equal, adding the only additional responsibility of the CJP is for him to also act as its chairman. 

“The Constitution stipulates that the JCP by majority of its total membership shall nominate judges,” they said, adding that the JCP in its meeting of July 28, 2022, had not approved the five candidates proposed by the chairman.

They said that it is also questionable whether we should commend ourselves for the number of cases decided when more than a third of the Supreme Court lies vacant. “We have repeatedly called upon the chairman of the JCP to convene a meeting of the JCP (both before and after the notified summer vacation) to enable making of nominations to the Supreme Court,” Justice Isa and Justice Tariq Masood said.

“To stress the urgency, we had stated that not filling the vacancies is reckless disregard of a constitutional duty but all to no avail. 

“The Supreme Court cannot be placed in suspended animation till such time that members, to use the words of the CJP, support the candidates proposed by the chairman.

“We were seated on the right and left of the CJP as he read out his address,” the judges said, adding that to maintain the decorum of the ceremony, they had remained quiet. However, since the CJP’s address was widely reported in the media, it has compelled them to clarify, lest our silence be misconstrued as consent.

Justice Isa and Justice Tariq Masood addressed the joint letter to Justice Umar Ata Bandial, Chief Justice of Pakistan, Justice ljazul Ahsen, Judicial Commission of Pakistan member, Justice Syed Mansoor Ali Shah, JCP member, Justice Sarmad Jalal Osmany, JCP member, Azam Nazeer Tarar, Federal Minister for Law and Justice, JCP member, Ashtar Ausaf Ali, Attorney-General for Pakistan and Akhtar Hussain, representative of Pakistan Bar Council, JCP member and Supreme Court Bar Association, through its president.

Dear Sirs, “We have always endeavoured to avoid unnecessary controversy and present a united face of the institution of the Supreme Court to the nation. However, the address of the Chief Justice of Pakistan at the opening ceremony of the New Judicial Year 2022-2023 took us aback and left us dismayed.”

They said that the object of the ceremony (as stated by the CJP) was to identify our priorities and set out our vision for the coming judicial year, but the CJP said much more. He sought to justify the decisions of the Supreme Court, respond to criticism of its judgments, and unilaterally speak on behalf of the Supreme Court, they said.

They said that the Supreme Court does not comprise of the CJP alone, it includes all the judges, adding that the CJP commenting on pending cases was disconcerting. “He also made uncalled for and disparaging remarks about the Supreme Court Bar Association and its current and several past office-bearers, accusing them of political partisanship because they had requested that the Full Court be constituted to hear the cited case.”

They said that the Supreme Court, having declined their request, the CJP could not disparage and attribute motives to them, adding that the CJP further sought to justify what the court did by needlessly asserting that the request had no legal ground.

The judges said that the Constitution requires the Supreme Court to give decisions but what was most inappropriate, and unreasonable, was to mention the working and decisions of the Judicial Commission of Pakistan.

They said that JCP is a separate and independent body under the Constitution, adding that the CJP said the candidates proposed by the chairman of the JCP were not approved and blamed the representatives of the federal government (the law minister and the Attorney-General for Pakistan) and also expressed his displeasure.

“Under no circumstances should the chairman of the JCP say what was said”, the judges said. They said that the CJP is the chairman of the JCP, therefore, he, more than anyone else, must abide by its decisions. It did not behove the CJP to attack its members, and to do so publicly only because they did not support his candidates.

“What the CJP said was also contrary to the record”, Justice Isa and Justice Tariq Masood said, adding that it is not correct that his candidates were supported by four members of the JCP, which the (unauthorised) release of the audio-recording of the meeting confirms.

The judges maintained that Justice Sarmad Jalal Osmany also did not support all his candidates. Similarly, Justice Isa and Justice Masood said that it was further incorrect to state ‘Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.’

“It does not envisage the said meeting as a pre-scheduled meeting, and that it was adjourned,” they said, adding that when the chairman did not succeed in achieving his objective, he took the majority decision of the JCP as a personal affront and walked out of the meeting.

Justice Isa and Justice Tariq Masood stressed that copy of their letter be issued to acting registrar of the Supreme Court and acting secretary of the JCP, who should release this letter and its Urdu translation to the media since it pertains to the CJP’s address which was widely reported in the media.