2nd March 2023
By Rehan Piracha
The Khyber Pakhtunkhwa Bar Council has demanded early convening of the Judicial Commission of Pakistan to consider the elevation of Chief Justice Qaiser Rashid Khan and senior puisne judge Justice Roohul Amin Khan of the Peshawar High Court to the Supreme Court ahead of their retirement this month.
On the call of the bar council, lawyers boycotted the courts across the province to protest the non-elevation of the judges of the Peshawar High Court to the Supreme Court in the last five years on March 1.
No PHC judges elevated since 2018: Zarbad Shah
Speaking with Voicepk.net on Thursday, Zarbad Shah, vice chairman of the Khyber Pakhtunkhwa Bar Council, said the Judicial Commission had made no elevation from judges in the province’s high court in spite of their seniority and it had instead elevated junior high court judges from other provinces. He pointed out that Justice Yahya Afridi of the Supreme Court was the last judge from the Peshawar High Court to be elevated to the apex court in 2018. “Late PHC Chief Justice Waqar Ahmad Seth was also not considered for elevation and his petition on the issue of elevation was still pending before Supreme Court,” he told Voicepk.net.
Zarbad Shah said the council had decided to hold a sit-in to protest against the non-elevation of their high court judges but the federal law minister assured its representatives that the issue would be resolved. “Unfortunately, nothing came out of the law minister’s assurance,” he added. PHC Chief Justice Qaiser Rashid Khan and senior puisne judge Justice Roohul Amin Khan were retiring this month but the Judicial Commission has not been convened yet to consider their elevation to Supreme Court. “Chief Justice Qaiser Rashid Khan is the most-senior high court judge in the country,” he pointed out.
Judicial Commission should frame rules over judges’ appointment: Mubashir Shah
Syed Mubashir Shah, chairman of the Executive Committee of the Khyber Pakhtunkhwa Bar Council, said the sidelining of the PHC judges for elevation has increased the sense of deprivation among the lawyers’ community in the province. He demanded that vacancies at the Supreme Court be filled through elevation from the PHC as Pakistan was a federation and the Supreme Court, being its apex constitutional court, should have proper representation of all federating units.
“The council has demanded early convening of the Judicial Commission of Pakistan meeting under Article 175-A of the Constitution,” Syed Mubashir Shah told Voicepk.net. The council has also made a submission to the Judicial Commission of Pakistan for framing rules over judges’ appointment so that provinces have an allocation of seats on the basis of which high court judges from the respective provinces are to be elevated to the Supreme Court, he added.
“The council is to call a Pakistan Lawyer’s Representatives convention in Peshawar as part of its protest, Syed Mubashir Shah, adding that the Pakistan Bar Council and other provincial bar councils supported their strike call on March 1.
Discrimination against KP judges unconstitutional: Shabbir Gigyani
Shabbir Hussain Gigyani, a senior lawyer, termed the discrimination against Khyber Pakhtunkhwa judges over their non-elevation to the apex court as unconstitutional. “The Constitution forbids discrimination on the basis of caste, race, ethnicity and religion,” he said. Secondly, the provinces are assured of their share of resources under the Constitution, he added. “Presently, Justice Yahya Afridi is the lone judge who was elevated from the Peshawar High Court to the Supreme Court,” he pointed out. Therefore, the lawyer’s community was justified in that the Judicial Commission should consider the senior-most judges of the Peshawar High Court to fill vacancies in the Supreme Court, he added.
According to the =Supreme Court (Number of Judges) Act, 1997, the number of judges in the apex court has been set at 16 excluding the Chief Justice of Pakistan. Presently, there are two vacancies in the Supreme Court. The Judicial Commission of Pakistan nominates a judge for elevation to the Supreme Court which is then approved by a parliamentary committee. The Prime Minister forwards the name sent by the committee to the President for appointment as apex court judge.