Parliamentary committee approves amendment to change SC judges’ appointment process

Parliamentary committee approves amendment to change SC judges’ appointment process

ISLAMABAD: The Parliamentary Committee on Judges Appointment has unanimously approved a constitutional amendment to change the process of judges’ appointment, their removal, and exercise public interest jurisdiction under Article 184 (3) of the Constitution.

PPP Senator Farooq H Naek chaired the meeting of the Parliamentary Committee on Appointment of Judges in Superior Courts, held at the Parliament House.

The others who attended the meeting includes Senate of Pakistan Secretary Mohammad Qasim Samad Khan and lawmakers Azam Nazeer Tarar, Sarfraz Ahmed Bugti, Ali Muhammad Khan, Raja Pervaiz Ashraf and Rana Sanaullah.

Earlier, chairperson of the committee Farooq H Naek had proposed the amendments.

The committee unanimously approved the constitutional amendments in the relevant provision of the constitution relating to judiciary.

The committee decided that the Supreme Court (SC) judges will be appointed on the basis of seniority, which shall be determined by their dates of appointment as a judge of a high court. If the judges’ appointment dates coincided, the decision will be made based on the basis of their age.

They further decided that ad hoc and acting judges of the top court will be appointed on the basis of parliamentary committee’s confirmation.

The committee also approved an amendment in Clause 3 of Article 184 of the Constitution. According to the approval, that if the top court exercises suo motu jurisdiction in human rights cases, in that case it would be mandatory that a three-member bench of the court will hear the matter.

Since a long, a large number of legal fraternity members have been demanding that a suo motu action must be appealable. The committee also approved that appeal against the order can be filed within 30 days and would be decided by five SC judges within 60 days.

It was further decided that if an appeal against an order under this Article was made, the order appealed against shall not be implemented during the pending decision.

The committee also approved the recommendation that the age of retirement for high court judges will be increased from 62 years to 65 years, similar to top court judges.
Similarly, the committee has approved an amendment in Article 209 of the Constitution. The parliamentarians decided that a reference on the account of misconduct against a judge of the superior judiciary will be decided by the Supreme Judicial Council (SJC) within 90 days.

The Article 175-A of the Constitution was also discussed, that states the manner of dealing with the appointment of judges of the SC as well as the composition of the SJC.
During the meeting the committee also deliberated on the composition of the Supreme Judicial Council and manner of dealing with the appointment of judges in the top court. The committee decided to invite Federal Minister for Law and Justice Dr Farogh Naseem in the next meeting.

Ahead of its meeting on September 09, the commission for the appointment of superior court judges, JCP, has sought details of reported judgements and list of adjudicated cases of three most senior judges including chief justice of the Lahore High Court.

According to sources, the JCP has sought record of Chief Justice LHC Muhammad Ameer Bhatti, Justice Malik Shahzad Ahmad Khan and Justice Shujaat Ali Khan. Likewise, the JCP has also sought the details regarding the dates of their appointments as LHC judges.

Chief Justice of Pakistan Gulzar Ahmed has summoned a meeting of the commission on September 9 to consider the name of LHC judge Ayesha Malik for appointment to the Supreme Court as Pakistan’s first female SC judge. Her name will be discussed for the seat that would fall vacant after the retirement of Justice Mushir Alam. Justice Ayesha is number four on the LHC judges’ seniority list. She became an LHC judge in March 2012.

It is pertinent to mention that in case of her elevation as top court judge, she will work as an SC judge until June 2031 and will become the Chief Justice of Pakistan after the retirement of Justice Yahya Afridi in January 2030.

The Pakistan Bar Council and other lawyers’ bodies have opposed the potential elevation of Justice Malik to the top court. The PBC vice-chairman said that it was a consistent stance of the legal fraternity that the JCP should follow the principle of seniority. He said the practice and desire to pick and choose should be stopped for elevation to the Supreme Court.

Separately, corresponding to the Pakistan Bar Council and Supreme Court Bar Association on Tuesday Attorney General for Pakistan Khalid Jawed Khan has urged both the bodies to figure out common grounds for making the process of appointments to the top court transparent.

He expressed, “The appointment of judges other than the most senior judges/Chief Justice of the High Court to the Supreme Court has been under discussion recently and there appears a discord between the views of the members of the JCP and the bar councils and bar associations.”

“The Constitution is silent on this issue while the judgement of the Supreme Court in the case of Supreme Court Bar Association vs Federation of Pakistan (PLD 2002 SC 939) stipulates that seniority is not a mandatory requirement for appointment to the Supreme Court.”

The AGP said it’s a fact that this judgement has not been universally accepted, adding that there were “compelling arguments” on both sides and the “debate will continue until parliament acts decisively”.

To end this discord, the members of the legal fraternity needed to provide their input which shall be placed before the JCP for consideration in its next session on Sept 9, the top lawyer said, adding that seniority, though important, is not a “benchmark” for appointments to the apex court.

Speaking about merit, he said: “There is also a force in the argument that the SC being the last court and comprising only 17 judges, the ideal principle for appointments should be a blend of seniority and merit. While there is an objective standard for the determination of seniority, merit is a more flexible concept … [and] there is a need to evolve objective criteria… [to end] any favouritism and nepotism.”

According to the AGP, multiple factors are taken into consideration for the performance evaluation of high court judges, some of which may be mathematically determined on the basis of available data while other factors would be informed by general evaluation and perception.

“These could include reputation and public perception about integrity, independence and impartiality, health condition, length of service, number of cases heard and judgments delivered, number of cases heard but judgments not delivered, average duration between final hearing and delivery of judgement, commitment to constitutional values and fundamental rights, range and diversity of work, expertise in a particular area, command over language, temperament and demeanour towards colleagues, the bar and the litigants etc,” he added.

“Being a representative of the legal fraternity in your respective capacity … you are requested to convey the views of the legal fraternity on this subject.” “I intend to present the criteria for the consideration of JCP in its next meeting and shall make every possible effort to persuade…JCP to adopt and make public such criteria leaving little room for disharmony on such vital issue”.

On the matter of women judges in the superior judiciary, the AGP added: “May I also take this opportunity to request the views of the bar on yet another important issue viz the allocation of at least one and in future more seats for women judges in the Supreme Court.”

He added that “in the next meeting of JCP, I intend to propose that the JCP acknowledges and reiterates the need for the appointment of more women in the superior judiciary and confirm that henceforth there shall always be at least one seat earmarked for appointment of a woman judge in the Supreme Court”.

The AGP said India appointed three women to its Supreme Court who took oath on Aug 31 (today). These include Justice Bangalore Venkalararniab Nagarathna who was third in the line of seniority in Karnataka High Court and will become the first female CJ of India in September 2027. Besides her Justice Bela M. Trivedi, the fifth in line of seniority in Gujrat High Court, also took oath as the judge of the Supreme Court of India today. The third judge is Justice Hima Kohli.

“These being vital issues relating to the administration of justice in the country, I would request you to convey the collective views to of the Bar so that these important constitutional matters may be resolved amicably in a dignified manner consistent with the highest traditions of this noble profession with which we are all privileged to be affiliated,” the AGP concluded.

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