July 30, 2022
By Ahmed Saeed
LAHORE: An audio recording of the Judicial Commission of Pakistan (JCP) meeting held on July 28 has opened a new Pandora’s box in an ongoing controversy regarding the appointment of five high court judges to the Supreme Court (SC).
The audio was released by the SC staff on orders of Chief Justice of Pakistan (CJP) Umer Atta Bandial in response to two letters written by Justice Qazi Faez Isa and Justice Tariq Masood. The two apex court judges, who are also members of the JCP, rejected the SC’s press release which stated that the matter of approval of the five nominees was deferred till the next meeting, in which the CJP would provide additional information regarding his nominees as well as possibly nominate a few other names.
However, Justice Isa and Justice Masood disputed this claim and said that the nine-member JCP rejected the nominees by a majority vote of five to four.
Justice Masood in his letter stated that the CJP adjourned the meeting hurriedly in an unprecedented and undemocratic manner while Justice Isa was in the midst of raising an objection to the mechanism of selecting candidates for appointment.
The CJP submitted five nominees for consideration of the JCP, which include Chief Justice of the Peshawar High Court (PHC) Qaiser Rashid Khan; Sindh High Court (SHC) judges Justice Syed Hasan Azhar Rizvi, Justice Muhammad Shafi Siddiqui and Justice Naimatullah Phulpoto; and Justice Shahid Waheed of the Lahore High Court (LHC).
It is pertinent to mention that currently four seats in the Supreme Court are vacant while a fifth vacancy will be created on August 13, 2022, which is the date of retirement for Justice Sajjad Ali Shah. However, the CJP attempted to fill the seat in anticipation by offering Justice Shah the opportunity to choose a successor.
The interesting aspect of the nearly two-and-half hour long audio is that Justice Masood rejected the nominees by sharing the data of those judges who had been overlooked by the CJP for nomination. He argued that those overlooked by the CJP on account of their competency were in fact far more competent and have remarkable records in comparison to the nominees.
All JCP members who followed after, including Justice Isa, are heard praising Justice Masood for presenting his data and analysis in an articulate manner.
Speaking on the three nominees from Sindh, Justice Masood stated that the Chief Justice of the SHC Justice Ahmad Ali Sheikh must be considered for appointment in the SC, and if he refuses the offer, then he should be deemed retired from his post as per Article 206 of the Constitution.
Sharing the data of adjudicated cases of two overlooked senior judges of the SHC, Justice Masood apprised the Commission that the senior puisne judge of SHC Justice Irfan Sadat Khan has authored 169 detailed judgments and 28 short judgments out of 190 his reported judgments. On the other hand, Justice Aqeel Abbasi, who is the third most senior in the SHC, authored 166 detailed judgments and 96 short judgments out of 262 reported judgments, indicating that his detailed judgments accounted for just 64% of his total.
Justice Masood then compared their performance with the CJP’s nominees from the SHC. On the performance of Justice Syed Hasan Azhar Rizvi, Justice Masood stated that Justice Rizvi relied more on short judgments as he authored 70 detailed judgments and 65 short judgments, indicating that his detailed judgments constituted just 52% of his total.
Meanwhile, Justice Shafi Siddiqui had authored 106 detailed judgments and 24 short judgments out of 148 reported judgments, accounting for 72% of his total.
Evaluating the competence of another nominee, Justice Naimatullah Phulpoto, Justice Masood said that he authored 134 detailed judgments and 111 short orders out of 255 reported judgments.
He then went on to say “this equation also points out that the ignored judges have given more detailed judgments than some of the nominees.”
Explaining to the commission about the sustainability of judgments rendered by the ignored and nominated judges, Justice Masood said that the apex court has set aside 4.8% of judgments authored by Justice Irfan Saadat Khan, while 57% of his judgements were upheld.
Furthermore, 3.5% judgments authored by Justice Aqeel Abbasi were set aside by SC while 44% judgements were upheld. The SC has also set aside 5% of judgments given by Justice Syed Hasan Azhar Rizvi, while 56% of his judgments were maintained by the SC. 4.9% judgments of Justice Shafi Siddiqui were rejected by the SC.
Justice Masood pointed out that the highest number of judgments set aside by the apex court were given by Justice Naimatullah Phulpoto, i.e 11 %.
“The above data and percentage of set aside judgments authored by Justice Irfan Saadat Khan and Justice Aqeel Abbasi are lesser in number than the other nominated judges, indicating their better competency and command of the law,” Justice Masood said.
‘CJ Bhatti and Justice Waheed have same number of reported judgments’
Commenting on the competency of Justice Shahid Waheed Khan of the LHC, Justice Masood said that he wrote fewer reported judgments than two of his senior colleagues ignored by the CJP for nomination, Justice Shujaat Ali Khan and Justice Shahzad Ahmed Khan.
He also pointed out that LHC Chief Justice Justice Ameer Bhatti almost authored the same number of judgments as Justice Shahid Waheed. According to Justice Masood, LHC Chief Justice Bhatti was overlooked for appointment as an SC judge, citing his fewer detailed judgments.
He also said that 4% judgments given by Justice Shahid Waheed were set aside by the SC while the 2.6% and 2.3% judgments given by LHC Chief Justice Bhatti and Justice Shujaat respectively were set aside.
Justice Masood said that the comparative chart indicated that senior judges are more eligible than the nominee judges on the account of competency.
