Restraint needed – 17 Sep 2022

IT is regrettable that the country’s most senior judges continue to air their internal disagreements in public, which has allowed partisan critics to continue assailing the integrity of the Supreme Court.

After the chief justice publicly regretted on Monday that the incumbent government had scuttled the appointment of several judges named by him for elevation to the apex court, a letter addressed to the Judicial Commission of Pakistan by the senior puisne judge and a colleague — which was apparently leaked to the press — communicated that the latter two wanted to maintain a distance from the chief justice’s position.

Despite hopes that the institution had been working on resolving its issues, it is apparent that troubles persist.

It is important, for context, to review the differences among the senior judiciary.

The pressing issue at the moment is the appointment of judges to the Supreme Court, which has been left with a considerably reduced strength after the retirement of several justices.

In August, the chief justice had, at the JCP forum, proposed five names for elevation. However, most of the nominations were resisted by the majority of the commission, which must approve all appointments to the Supreme Court. The meeting had thereafter been adjourned without a decision.

The chief justice has now said that the government’s representatives in the commission opposed his nominees because of the Supreme Court’s ruling in favour of the PML-Q’s Pervaiz Elahi in the Punjab chief minister election case. On the other hand, the dissenting JCP members have maintained that the chief justice should not ignore the seniority principle and that there needs to be a formal criterion for the elevation of judges rather than leaving nominations to the chief justice’s discretion.

Not only is the deadlock on the issue getting uglier, it is also affecting the court’s functioning.

It is clear that the Supreme Court, saddled with a huge backlog of cases, needs those appointments urgently. It is feared that divisions may deepen in the judiciary and the bar councils, forcing stakeholders into partisan camps. This would be immensely damaging to the Supreme Court.

The growing perception of internal differences appears to have eroded the apex court’s standing as a neutral arbiter on matters that fall in its domain. Already, its judgements are being interpreted as favouring one political faction or the other, even though the institution had, till recent years, largely maintained a distance and aloofness from the political domain.

It is imperative that both the judiciary and its attached institutions open an honest dialogue and reach an amicable resolution to their prevailing differences.

It would also be better to keep this dialogue away from the public eye, as most commentators are ill-equipped to understand or participate in what should be an internal debate among the judges and bar representatives.

The Supreme Court must not be destabilised any further.

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