July 27, 2022
By Ahmed Saeed
LAHORE: Bar councils and associations have called for constitutional amendments to Article 175-A and Article 209 to allow equal representation of all the stake holders in the process of appointment and removal of judges in the country.
The Supreme Court Bar Association had earlier expressed reservations on the three-member bench, headed by Chief Justice Umar Ata Bandial, which was hearing the Punjab Assembly deputy speaker ruling case in the election of Punjab chief minister. The SCBA demanded the formation of a full court to hear the matter of deputy speaker ruling and the review of May 17 Supreme Court verdict on defection clause, which was rejected by the bench.
The demand for unifying the forum for appointment and removal of judges under the Constitution was made in a joint meeting of the representatives of Supreme Court Bar Association of Pakistan (SCBAP), High Court Bar Associations of all the provinces, Pakistan Bar Council (PBC) and the Provincial Bar Councils and Members/Nominees of Bar Councils to the Judicial Commission of Pakistan on July 27.
The representative meeting was called by SCBA President Ahsan Bhoon and PBC Executive Committee Chairman Pir Muhammad Masood Chishti to consider the situation arising from the controversies of the independence of judiciary with regard to functioning of Courts as well as the appointment of Judges in the Superior Courts.
Concern shown at violation of seniority principle
In a resolution, the representatives of lawyers expressed displeasure at violation of the seniority principle in nominations for the appointment of junior judges to the Supreme Court. The joint resolution also reiterated its long-standing demand for nearly a decade that the Judicial Commission of Pakistan immediately amend its rules to allow nominations for judicial appointments to be initiated by any member of the Judicial Commission rather than the Chief Justice alone. It also called for framing a fair, transparent and objective criteria and procedures to gauge the suitability of prospective appointees.
The resolution demanded that amendments in Article 175-A and Article 209 of the Constitution should be made, in order to unify the forum for appointment and removal of Judges and to make it more inclusive and comprising equal representation of all the stake holders i.e. judges, bar, executive and the parliament. Moreover, the resolution also demanded that Article 184 (3) of the Constitution be amended in order to provide one right of appeal.
Call for ending CJ’s discretion in formation of benches, suo motu
The resolution demanded that the ‘federal government immediately frame legislation in terms of Articles 175(2) and 191 of the Constitution regulating the manner of exercise of jurisdiction of the Supreme Court and, in particular, to end the sole discretion of the Chief Justice in relation to the constitution of benches, fixation of cases and initiation of suo motu proceedings and vest the same in a Committee comprising the five senior-most judges of the Court’.
The bar associations and councils also demanded that the federal government immediately withdraw the Curative Review filed against Justice Qazi Faez Isa, Senior Puisne Judge of Supreme Court which it had admitted was wrongly filed.
Senior lawyers also expressed reservations about the Supreme Court’s verdict that set aside the Punjab Assembly deputy speaker’s ruling which replaced Hamza Shehbaz with Pervaiz Elahi in the office of chief minister. Senator Kamran Murtaza, former president of SCBA, termed the verdict contrary to the past judgments of the Supreme Court. “The verdict has been implemented but it will never be accepted as a judicial precedent,” Kamran Murtaza told Voicepk.net. “Previously, only lawyers spoke of biased benches but now everybody was talking about it which was not a good omen,” he added.
Amjad Shah, member of Pakistan Bar Council from Khyber Pakhtunkhwa, also criticised Supreme Court’s verdict about the Punjab CM’s election. “There are many legal flaws in the judgment which makes it unlikely to be quoted as a legal precedent,” he added.
Munir Kakar, member of Pakistan Bar Council from Balochistan, demanded that proportional representation should be given to small provinces in the Supreme Court. He suggested that the Nineteenth Amendment in the Constitution should be repealed to allow proportional provincial representation of judges in the Supreme Court. He also a sought a ban on judges from holding any office after their retirement.
For some time now, voices are being raised from within the judiciary regarding the discretionary powers of the Chief Justice. Now it has to be seen whether the Parliament and political parties make any effective legislation in this regard or they continue to play politics on the issue only by paying lip service.