Daily Times

Recent happenings in the apex court are a cause of great concern. The Supreme Court (SC), on a constitutional petition, suspended the decision of the Parliamentary Committee (PC) that denied an extension to four Lahore High Court (LHC) additional judges recommended by the Judicial Commission (JC). The committee however approved the name of the rest of 20 additional judges recommended for extension. The court suspended the decision of the PC on the ground that it has not adhered to Article 175-A (12) of the constitution, which requires the committee to forward reasons for the non-confirmation of names recommended by the JC. This will prove to be a test case of how the system crafted and then amended by parliament is going to work. Our initial reading of the 18th and 19th Amendments was that the decision of the PC was final and non-justiciable. That the SC has accepted a constitutional petition for hearing and suspended the PC’s recommendation sends out a clear message that this is not the case, once again tipping the balance in favour of the judiciary in the appointment of superior courts judges.

The issue of extension in service or reappointment of officers after retirement has become highly controversial since the verdict of the SC on the appointment of retired officials on contract basis in the civil bureaucracy. However, the SC itself is not seen as applying the same principle within its own institution. The number of additional judges recommended by the JC for the LHC has raised many an eyebrow. On the other hand, the proposal to give an extension to two retired judges — Justice Khalil-ur-Rehman Ramday and Justice Rehmat Hussain Jaffery — in the SC on an ad hoc basis has been criticised by the Pakistan Bar Council, the Supreme Court Bar Association President Asma Jahangir, and other lawyers’ forums. They have demanded an end to the culture of ad hocism. If there is a need, the number of permanent seats of judges could be increased instead of hiring retired judges. How can the judiciary expect other institutions to follow a principle it is not ready to accept for itself?

The third major issue of concern is the controversy surrounding the case of judges who took oath under the provisional constitutional order (PCO), were declared non-functional after the restoration of the judiciary in March 2009 and charged with contempt of court by a four-member bench of the SC on February 4. In an unprecedented move, a non-functional judge of the Peshawar High Court, Justice Jahanzeb Rahim, issued a show cause notice to four serving SC judges who had charged the PCO judges with contempt, stating that a high court is independent of the SC and its judges enjoy immunity from such proceedings. During a hearing of the intra-court appeal against contempt of court notices on Friday filed by Justice Shabbar Raza Rizvi and Justice Hasnat Ahmad Khan, the seven member larger bench has barred non-functional judges from issuing such orders, elaborating that such orders will have no legal validity. Speculations are rife whether this has the makings of an intra-court confrontation, last seen during the tenure of Chief Justice Sajjad Ali Shah.

One never expected that the institution of the judiciary that was restored on the principle of supremacy of the constitution would get mired in such controversies. When the institution of the judiciary becomes controversial, its repute is hurt and public confidence in its impartiality suffers. Excess of lack of judicial restraint has brought the judiciary to its present pass.*