Judicial politics: Balance shifts away from CJ Bandial

Lawyers believe Justice Isa’s position strengthens with PHC CJ approval as SC judge

Hasnaat Malik June 15, 2023
The larger bench, led by Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial (left), will commence hearing petitions on Friday against the formation of the inquiry commission, led by Justice Qazi Faez Isa (right).—File photo


Despite the Judicial Commission of Pakistan giving a unanimous approval to Peshawar High Court (PHC) Chief Justice Musarrat Hilali's elevation to the apex court, the chances for an end to judicial politics at the Supreme Court are slim.

This is despite the fact that at the end of Wednesday’s JCP meeting, senior puisne judge Justice Qazi Faez Isa thanked Chief Justice of Pakistan Umar Ata Bandial personally for convening the session.

It was Justice Isa who had recommended her elevation to the apex court. Another fact that makes the meeting special is that the JCP met after almost eight months.

Former additional attorney general Tariq Mahmood Khokhar believes that Justice Hilali’s appointment to the top court “is the catalyst that completes a long process of collapse”.

"It is the cause and consequence of the shift of power. Her elevation tipped the balance of power in the Supreme Court," he says and adds that it does not bode well for the incumbent chief justice of Pakistan.

After Justice Hilali's elevation, senior lawyers believe that Justice Isa's position will further strengthen in the apex court.

Since former chief justice Saqib Nisar's tenure, the top court continuously mires in controversy with regard to the appointment of judges. One section of judges supports junior judges’ elevation to the Supreme Court while the other section believes that top court judges should be appointed on the basis of the seniority principle unless there is “no objective cretaria” is evolved.

Four top court judges namely, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi and Justice Shahid Waheed, were appointed with the majority of one vote as they were elevated without adhering to the seniority principle. However, one seat of SC judge is still vacant which is likely to be filled from a judge belonged to Sindh.

Last week, the commission members informally discussed the nomination of Sindh High Court Chief Justice Ahmed Ali Sheikh for his appointment as SC judge. Earlier, the same was suggested by Justice Isa in his letter written other JCP members.

It is learnt that the majority of JCP members were not in favour of his elevation at the time because he would be attaining superannuation. That was despite the fact that CJ Bandial and two other members were in favour of him to be considered for the appointment as SC judge.

Moreover, it is witnessed that there is resentment within interior Sindh for not considering the elevation of an ethnic Sindhi judge to the Supreme court for the last six years. Curiously, the Sindh High Court Bar Association is silent over the deferment of SHC chief justice's  elevation matter as he would retire in a year.
One non-judicial JCP member believes that the next appointment will be made during Justice Isa's tenure as chief justice.

Lawyers say that if CJ Bandial recommends the nomination of senior puisne SHC judges, then his appointment may also be a unanimous outcome.

Although the appointment issue may settle among the top court judges, there was several other issues, like initiating of misconduct proceeding against the SC judge, composition of benches and fixation of cases, etc.

Moreover, there has been trust deficit among the judges affecting the top court proceedings for the last three years. The Supreme Court will soon go into summer recess, Justice Isa, who was not part of any bench for the last couple of months, is becoming stronger with every passing day.

Regarding the appointment of second female judge, Peshwar High Court Bar Association Finance Secretary Nida Khan says it is crucial for the judiciary to have women in top positions to promote diversity, inclusivity, and for a broader range of perspectives in the decision-making process.

“The appointment of Chief Justice Musarrat Hilali as the Supreme Court judge will pave the way for other talented and deserving women to break barriers and reach the highest echelons of the judiciary,” she adds.


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