Who will fill the vacant post at the SC after Arab’s retirement?

[Shahzaz ud din]

Who will fill the vacant post at the SC after Arab’s retirement?
SHC chief justice is the senior most high court judge of the country


Hasnaat MalikNovember 07, 2020

Former Supreme Court judge Faisal Arab. PHOTO: FILE
ISLAMABAD:
One of the judges of the apex court, Justice Faisal Arab, retired last week and now the barrooms are abuzz with speculation about who will fill the position vacated by the judge who hailed from Sindh province.
Process for elevation of a judge to the Supreme Court has already been under severe criticism for the last three years as the last four apex court judges were elevated out of turn, ie, the principle of seniority was disregarded in their appointment.
Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth, the Khyber Bar Council and the Sindh Bar Council even challenged elevation of 3 junior Lahore High Court (LHC) judges – Justice Qazi Muhammad Amin Ahmed, Justice Aminuddin Khan and Justice Sayyad Mazahar Ali Akbar Naqvi - to the SC.
Interestingly, the petitioners did not challenge the elevation of Justice Munib Akhtar, who was on number four in the seniority list of the Sindh High Court (SHC).
Justice Qazi Muhammad Amin Ahmed was appointed to SC during the tenure of former chief justice Asif Saeed Khosa a month after his retirement from the LHC. He was 26th on the LHC seniority list.
Justice Aminuddin Khan was also elevated to the apex court even though he was fifth in terms of seniority in the LHC while Justice Mazahar Ali Akbar Naqvi was the third most senior judge in the LHC.
Currently, SHC Chief Justice Ahmed Ali M Sheikh is the senior most high court judge in the country.
However, three consecutive chief justices – Saqib Nasir, Asif Saeed Khosa and Justice Gulzar Ahmed – did not consider his name for elevation to the top court in the past. The SHC chief justice will retire on October 2, 2023.
Talking to The Express Tribune, a member of the Judicial Commission of Pakistan (JCP) – the constitutional forum that appoints judges to superior courts – said Chief Justice of Pakistan Gulzar Ahmed has yet to nominate any judge for elevation to the SC.
“However, this time the JCP should appoint a judge to the vacant SC position on basis of the principle of seniority in view of the prevailing circumstances,” he said.
According to sources, SHC chief justice Sheikh is the only ethic Sindhi among the six top SHC judges. On the other hand, after Arab’s retirement, there is no ethnic Sindhi judge left in the apex court.
Pakistan Bar Council (PBC) Vice Chairman Abid Saqi said elevation should be made on basis of seniority principle in order to avoid controversy as constitution petitions are already pending in the apex court against elevation of junior judges.
Interestingly, if the SHC chief justice is elevated to the SC then Islamabad High Court (IHC) Chief Justice Athar Minallah will become a member of the Supreme Judicial Council (SJC), which will be very significant in perspective of Justice Qazi Faez Isa case.
The SJC is the constitutional forum that can hold a superior court judge accountable. A reference was filed in the SJC against Justice Isa last year. Although the apex court has quashed this reference, the SJC may resurrect it in view of a report on the Isa family’s foreign properties.
The Parliamentary Committee on Judges Appointment also objected to insufficient representation of the smaller provinces in the Supreme Court. The committee called for giving the smaller provinces their due share in the apex court benches in order to remove a sense of deprivation among them.
The committee noted that in order to ensure the federal complexion, judges should be appointed to the Supreme Court from Khyber-Pakhtunkhwa, Balochistan, or the Islamabad Capital Territory.
No judge has been elevated from Balochistan High Court since 2014. Only one SC judge – Qazi Faez Isa – belongs to the province of Balochistan. Likewise, only two judges from the K-P are working in the apex court. IHC chief justice Minallah also belongs to the K-P.
However, rights activists do not want Justice Minallah’s elevation to the SC at this critical time. They believe that he is the only judge in the country who is giving relief to the citizens from state aggression.
Currently, eight Supreme Court judges are from Punjab and five from Sindh. Seven SC judges will retire in the next two years.
The tenures of Justice Manzoor Ahmad Malik and Justice Mushir Alam will end on April 30 and August 17 next year respectively. Five judges are going to retire in the first eight months of 2022.
Chief Justice Gulzar Ahmed will retire on February 1, 2022, Justice Qazi Muhammad Amin Ahmed on March 25, Justice Maqbool Baqar on April 4, Justice Mazhar Alam Miankhel on July 13 and Justice Sajjad Ali Shah on August 13.
Two judges will retire during the tenure of the incumbent top judge Gulzar Ahmed while the remaining five during the tenure of the next chief justice Umar Ata Bandial.
One section of lawyers, however, said as a matter of principle only the best among the high court judges should be considered for elevation to the SC and nomination of judges should be based on competence, integrity, performance and juristic ability and not merely seniority.

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After Seth’s death, IHC Chief Justice Minallah becomes SJC member
Upcoming council meeting to take up FBR report on Isa family assets; complaints against NAB chief


Hasnaat MalikNovember 14, 2020

IHC Chief Justice Athar Minallah. PHOTO: FILE
ISLAMABAD:
After the death of Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth, Islamabad High Court (IHC) Chief Justice Athar Minallah will become a member of the Supreme Judicial Council (SJC) as he is now the second senior most high court chief justice.
The SJC – the constitutional forum that can hold superior court judges accountable – comprises five members. The chief justice of Pakistan is the SJC chairman while two senior most Supreme Court judges and two senior most chief justices of the high courts are members of council.
Currently, CJ Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Sindh High Court (SHC) Chief Justice Ahmed Ali M Shaikh are its members. The composition of SJC is very crucial due to the matters it is likely to take up soon.
Sources revealed to The Express Tribune that the SJC is expected to take up complaints/references against SC judge Qazi Faez Isa, National Accountability Bureau (NAB) Chairman Javed Iqbal, SHC judge K K, Agha, two Lahore High Court (LHC) judges and one PHC judge in upcoming meeting.
The sources said the SJC chairman summoned a meeting of the SJC on October 29 to consider various complaints but the meeting was postponed due to non-availability of Justice Waqar Ahmad Seth as he was hospitalized. Justice Seth died of coronavirus disease on Thursday.
The CJP is likely to summon the meeting soon.
The sources said in the upcoming meeting the SJC will hear two complaints registered against incumbent NAB Chairman Javed Iqbal. Both were filed by lawyers – Barrister Zafarullah, Saeed Zafar and Mohsin Raza Ranjha – last year. Both the complaints were part of the last meetings’ agenda.
The SJC was also to hear the reference filed last year against SHC Justice KK Agha on October 29. The forum was also to hear complaints against two LHC judges, one of which is a female. Similarly, it was to take up a complaint against a PHC judge.
However, most significant among all these matters is the Federal Board of Revenue’s (FBR) report about the foreign assets of the family members of Justice Qazi Faez Isa. The forum was also to review another complaint against Justice Isa filed by some Arbi Khan.
All these references are likely to be taken up in the next SJC meeting to be held this month. The SJC in its upcoming meeting would also consider the matter regarding rectification of errors in the judges Code of Conduct, issued on September 2, 2009.
Senior lawyers believe that Justice Bandial may recuse himself from considering the FBR report about Isa family as Justice Bandial presided over the 10-judge full court which heard Justice Isa’s petition against a presidential reference seeking his removal and which referred the matter to tax authority for an inquiry on June 19.
Senior lawyers also believe that if Justice Bandial recuses himself then the other eight judges of the bench will follow suit. The tenth member of the Isa bench – Justice Faisal Arab – has already retired.
When the bench was being formed to hear his petition against the presidential reference, Justice Isa had raised objection to inclusion of Justice Sardar Tariq Masood and Justice Ijazul Ahsan in the bench, citing conflict of interests.
Both the judges later recused themselves and did not sit in the bench. Lawyer said if both the judges did not sit in the Isa case bench then there is no chance that they will sit in the SJC now to consider matters related to Justice Isa’s family members
Lawyers believe that in the seniority list, Justice Amin-uddin Khan is the eligible apex court judge to sit in the SJC in case Justice Bandial and other judges recuse themselves.
After the retirement of Justice Faisal Arab, one seat of judge is vacant in the apex court. CJ Gulzar Ahmed has yet to nominate any high court judge for elevation to the Supreme Court.
If the seniority principle is followed then SHC CJ Justice Sheikh is the senior most among all high court chief justices. Balochistan High Court (BHC) Chief Justice Jamal Khan Mandokhail is on number three in the seniority of chief justices.
Interestingly, if SHC chief justice is elevated to the Supreme Court on basis of seniority, he will cease to be an SJC member and the new SJC member from high courts will be BHC Chief Justice Mandokhail.
Justice Minallah took the oath as IHC chief justice on November 28, 2018. Since 2005, 498 complaints have been registered against superior court judges in the SJC.

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