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The Judicial Commission of Pakistan (JCP) on Wednesday approved the nomination of a junior Sindh High Court (SHC) judge, Muhammad Ali Mazhar, to the Supreme Court amid a protest by the apex regulatory body of lawyers, the Pakistan Bar Council (PBC).
The JCP approved the nomination of Justice Mazhar, fifth in SHC seniority, with five members endorsing the move and four opposing it. It was the first time in the JCP history that four members of the commission opposed elevation of any judge to the apex court.
Sources revealed to The Express Tribune that Justice Qazi Faez Isa, Justice Maqbool Baqar, Justice (retd) Dost Muhammad Khan and PBC representative Akhtar Hussain strongly opposed the nomination of Justice Mazhar to the apex court on several grounds.
No one raised a question about the integrity of the nominee. However, dissenting members wondered as to why four senior SHC judges were being ignored.
They said if the commission does not want to nominate SHC Chief Justice Ahmad Ali Sheikh due to any reason then why three other senior SHC judges are also overlooked. Justice Maqbool Baqar even presented a complete chart to show performance of the three senior SHC judges.
Sources revealed that harsh words were also exchanged between Justice Qazi Faez Isa and Minister for Law Dr Farogh Naseem, who is also a member of the constitutional forum with a key role in appointment and confirmation of judges in higher judiciary.
Justice Isa, who is affected with Covid-19 disease, attended the meeting through video link.
Sources said that Justice Isa had written a letter to the JCP chairman – Chief Justice of Pakistan Gulzar Ahmed – before the meeting but he did not respond. The judge had later made his own arrangements to give his point of view during the meeting via video link.
The PBC representative in the JCP – Akhtar Hussain – suggested postponing the JCP meeting until the retirement of Justice Mushir Alam. Justice Alam, who is part of the JCP and who voted for elevation of Justice Mazhar, is retiring in the second week of August.
It is learnt that one member of the JCP made it clear that judges could not surrender their powers. The member was visibly annoyed by the superior bars strike call against the JCP’s nomination.
The JCP meeting continued for more than two hours
One member of the superior bar said they were expecting that Justice Alam will oppose that nomination during the meeting. “His endorsement is very shocking for us,” he added. He said technically, the JCP took the decision with a vote of 4-4 as the CJP as the JCP chairman nominated the junior judge himself.
PBC member Amjad Shah said lawyers are very disappointed at the JCP recommendation. He said the PBC is going to convene all lawyers representatives’ convention on August 5 for adopting a future course of action against the JCP recommendation.
“The bar will oppose any move against appointment of the Sindh High Court chief justice as an ad hoc judge of the apex court,” he added.
The JCP on July 13 approved the nomination of Balochistan High Court (BHC) Chief Justice Jamal Khan Mandokhail to the apex court. However, it deferred the matter related to the elevation of Justice Muhammad Ali Mazhar due to opposition of some of the members.
According to sources, a few JCP members had expressed serious reservations over the nomination of Justice Mazhar and strongly endorsed the superior bars' concerns.
One member had even asked why four senior SHC judges, including SHC Chief Justice Ahmad Ali Sheikh, were being ignored. Earlier, the PBC observed a strike on July 13 in order to register a protest against the nomination of the SHC junior judge to the SC.
At the last meeting, Attorney General for Pakistan (AGP) Khalid Javed Khan had proposed a formula in order to address the lawyers’ concerns. In view of that proposed formula, two judges could be elevated from the SHC to the SC. However, one will perform as an ad hoc SC judge.
A representative of the superior bar revealed to The Express Tribune that they had conveyed to the JCP that only SHC Chief Justice Ahmad Ali Sheikh should be elevated as a permanent judge to the SC.
The PBC on Monday issued a statement after an emergency meeting of its executive committee to express serious reservations over the JCP’s July 28 meeting called to discuss elevation of Justice Mazhar.
A statement issued after the PBC meeting said the legal fraternity had raised serious reservations over possible elevation of Justice Mazhar at the JCP’s meeting on July 13 and the JCP had deferred the matter. However, the forum has been reconvened within a short span of 15 days.
"In view of the above the executive committee has announced complete strike call from all the courts throughout the country for Wednesday, as a mark of complete protest [against] the elevation of a junior judge by ignoring four senior judges of the same high court as well as the principle of seniority as enshrined in various landmark judgments of the Hon’ble Supreme Court,” it said.
The committee also took strong exceptions to the remarks of Federal Minister for Information Fawad Chaudhry, who described the principle of seniority as ridiculous and foolish. The PBC said the minister’s remarks are highly condemnable.
One section of lawyers believes that seniority should not be the only principle to elevate a judge from high courts to the SC. They call for taking into account other aspects like competence, uprightness, integrity, performance and ability while elevating a judge to the apex court.
Interestingly, the superior bars did not oppose the elevation of four junior judges to the SC in the last four years. During the tenure of former chief justice of Pakistan Mian Saqib Nisar, Justice Munib Akhtar was elevated to the SC despite being fourth in seniority among the SHC judges.
Justice Qazi Muhammad Amin Ahmed was appointed as an SC judge a month after his retirement from the Lahore High Court during the tenure of former CJ Asif Saeed Khosa. He was 26th in the LHC seniority.
Justice Aminuddin Khan of the LHC was also elevated to the SC even though he was fifth in terms of seniority. Recently elevated Justice Mazahar Ali Akbar Naqvi was third in seniority in the LHC.