JCP controversy – 31 Jul 2022
What should have been a regular and uncontroversial exercise of elevating judges to the Supreme Court of Pakistan by the Judicial Commission has turned out to be quite dramatic. The controversy surrounding the closed-door meeting of the Judicial Commission of Pakistan (JCP) is exposing deep fissures within the commission that ideally should be working without such accusations and counteraccusations. On July 29, Chief Justice of Pakistan Umar Ata Bandial in an exceptional move relaxed the rules to release the audio recording of the JCP meeting. Prior to the release of the recording, two members of the commission had issued letters claiming that the meeting had disapproved of the nominations of judges the CJ had proposed for elevation to the top court. The letters were in response to a press release by the Supreme Court which has said that the meeting had been deferred to enable the chief justice to provide additional data about the nominations and more names to the list for consideration, if the chief justice considered it appropriate. Then there was another press release that attempted to put an end to the controversy by releasing the audio tape.
This unprecedented back and forth regarding the goings-on in the JCP and the public nature of what seems to be a split within the judiciary regarding the nominations neither bodes well for the judiciary, nor does it contribute to enhancing the prestige of the court. In fact, it does the exact opposite – making those responsible for delivering justice by resolving disputes subjects of rumours regarding infighting. This controversy has its roots in two important issues, both of which must be resolved soon for the apex court and the CJ to move ahead smoothly. The first is the Supreme Court’s interpretation of Article 63A after which other judges, political parties, and even the general public are looking intently at the way the SC has been working lately. The JCP’s meeting therefore assumed even more significance as it discussed the elevation of five judges to the superior court. Nearly all stakeholders such as the bar councils, lawyers’ community and senior puisne judge Justice Qazi Faez Isa had raised their concerns about the timing of the meeting because judges were on summer vacations – with the perception doing the rounds that some judges would be kept out of the equation, perceptions that are highly detrimental to the reputation of the commission itself and to the overall working of the judiciary in the country. This entire episode is unsavoury and should have been avoided. Ultimately, by a majority of 5-4 the JCP opposed four names that the chief justice had proposed, setting aside for further consideration one name.
The second, and possibly even more important issue that lies at the heart of the matter is the method and criteria for appointments to the Supreme Court. There has been a passionate debate the past few months on what needs to be given preference: seniority or merit. Ideally, there should have been detailed criteria already in place to elevated judges. In the absence of such criteria, the elevation of judges is always likely to be controversial as has been the case previously too. It is about time that this long-standing controversy was settled and perhaps the only way to move forward is to develop the criteria first and then move forward to discussions for elevations. Perhaps, in this the opinion of constitutional experts, retired judges and bar association who have all been engaged in discussions regarding the criteria for elevation of judges could be sought. Otherwise, while dissent and disagreement between judges reflects a democratic mindset, an openly divided SC and the legal fraternity is not a good look for the justice system.