The Judicial Commission of Pakistan (JCP) on Wednesday, July 28, approved the elevation of Justice Mohammad Ali Mazhar, of Sindh High Court to the Supreme Court of Pakistan. On July 13, the JCP had recommended the elevation of Baluchistan High Court Chief Justice Jamal Khan Mandokhel to the country’s apex court.
These appointments have been made to fill the two positions lying vacant because of the superannuation of Justice Faisal Arab (Nov 2020) and Justice Manzoor Ahmad Malik (April 30, 2021). With the latest appointment, the total strength of 17 Supreme Court judges is now complete.
Elevation of Justice Mohammad Ali Mazhar was a majority decision of five to four. According to media sources, JCP members that decided for the elevation of Justice Mohammad Ali Mazhar were Chief Justice of Pakistan Justice Gulzar and senior justices like Justice Mushir Alam and Justice Umar Ata Bandial. Other esteemed members included Attorney General for Pakistan Khalid Jawed Khan and Law Minister Dr. Farogh Naseem.
Justice Mazhar is respected for his competence amongst the judiciary and legal community in Karachi. Though he was fifth on the seniority list but according to the apex court ruling in the 2002 Faqir Khokhar case, elevation to the Supreme Court (SC) is always considered a fresh appointment, and therefore any judge even a junior from a particular high court can be elevated to become a judge of the apex court. In other words elevation from a High Court bench to Supreme Court is not a function of seniority or time spent on the bench but is an independent fresh decision made by the Judicial Commission.
This is also supported by past practices. For instance, in April 2018, Justice Muneeb Akhtar, who was fourth on the seniority list of the SHC was elevated by following the precedence when two chief justices namely Saqib Nisar and Asif Saeed Khosa were elevated to the apex court by ignoring the then Lahore High Court Chief Justice Khawaja Sharif. So, there is nothing extraordinary about the latest decision of the Judicial Commission.
Political Nexus between Bar Associations and Media
So, the controversy generated by some parts of the legal community supported by usual sections of the media is pure politics and certainly in a bad taste. Apparently, Pakistan Bar Council (PBC) has called a general body meeting of all provincial bar councils and associations on August 5.
Reporting by certain English papers relies less upon simple facts or understanding of past practices and precedents and more upon colourful adjectives to create a sensation. So, a leading paper reported that the decision took place in a tense atmosphere and is opposed by a premier body of lawyers. Readers got the impression that the associations of lawyers have to decide for the elevation of supreme court judges and there is something wrong when these powerful lawyers are not obeyed.
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Quoting an informed source, the same newspaper claimed that those who opposed the majority vote during the JCP meeting include Justice Qazi Faez Isa, Justice Maqbool Baqar, former SC judge Dost Mohammad Khan and the recently appointed member representing the PBC Advocate Akhtar Hussain.
Reading this and similar accounts and sensational-sounding opinion pieces by certain lawyers one gets the impression as if the decisions of the Judicial Commission of Pakistan or courts, in general, can only take place by unanimity.
The reality is that judicial bodies in this country and anywhere in the world are often split in reaching decisions and there is nothing new in it. And according to the Supreme Court of Pakistan’s above-mentioned decision (2002 Faqir Khokhar case) elevation to the Supreme Court is always considered a fresh appointment and therefore any judge even a junior from a particular high court can be elevated to become a judge of the apex court. And precedent exists.
It is apparent that dirty politics is being played by sections of bar councils in cahoots with usual segments of media now known for sensationalizing everything related to the judiciary.
Calls for Black Day, strikes and protests, and demands that opinions of lawyers or bar councils should be given weight by the Judicial Commission of Pakistan tantamount to blackmail and influence peddling by the bar councils in a defined institutional mechanism that concerns all citizens.
This nexus between specific bar councils, influential lawyers and the media represents a huge part of what is wrong with the country’s criminal justice system. This nexus has brought the whole judicial system to the verge of dysfunctionality. Orchestration by media and few newspapers is used to create the impression as if the lawyers and their associations have a divine right to control all and any decision-making related to judiciary whatever it may be.
Therefore, we use the word “nexus” for this pathological situation. The government and the Judicial Commission need to stand strong, and other sections of media and aware citizenry need to step forward to put an end to this unwarranted influence peddling.