Despite the lapse of four months, the Judicial Commission of Pakistan (JCP) has yet to convene a meeting to appoint permanent chief justices for the Sindh High Court, Peshawar High Court and Islamabad High Court.
The Balochistan High Court also remained without a permanent chief justice for more than three months. On May 19, the JCP approved the appointment of Justice Muhammad Ejaz Swati as BHC chief justice, but only for a period of two weeks. He retired on June 5.
Justice Rozi Khan Barech, who ranked second in the BHC’s seniority list, has now been appointed acting chief justice.
Similarly, Justice Sardar Sarfraz Dogar has been serving as acting chief justice of the Islamabad High Court for the past four months. His seniority is currently under challenge in the Supreme Court. While the litigation may explain the delay in appointing a permanent IHC chief justice, no clear reason exists for the prolonged delay in appointments for the other three high courts.
Since the passage of the 18th Amendment, the JCP has not previously delayed the process of appointing permanent chief justices for the high courts.
Under the new constitutional arrangement, the executive holds a dominant role in the appointment of judges to the superior judiciary. However, senior judges, particularly the Chief Justice of Pakistan, have made no serious effort to restore balance in the appointments process.
During the tenure of the current CJP, Justice Yahya Afridi, approximately 50 judges have been appointed to the superior courts, with the executive playing a key role in nominating many of them. No judge can now become a permanent chief justice without the executive’s support.
The government has thus succeeded in maintaining “like-minded” acting chief justices in key high courts.
With the backing of former CJP Qazi Faez Isa, the government previously managed to elevate Justice Malik Shahzad Ahmad Khan from the Lahore High Court to the Supreme Court, reportedly because he was not their preferred choice to lead the LHC.
At present, the executive is reportedly reluctant to elevate incumbent LHC CJ Alia Neelum, as the Punjab government is said to be comfortable with the current provincial judiciary.
It is also learnt that the executive remains indecisive regarding the appointment of a permanent chief justice for the Sindh High Court.
“It is the PPP that will decide about the permanent chief justice of the SHC,” a source added.
Reports suggest that PPP legal minds are divided on the nomination for the next SHC chief justice.
Similarly, Justice Syed Mohammad Attique Shah, who was second in the seniority list of PHC judges, has been appointed as acting chief justice of the Peshawar High Court. The appointment of a permanent PHC chief justice is being delayed for known reasons.
Lawyers are increasingly vocal about the disregard for senior puisne judges of PHC and BHC in the appointment of acting chief justices.
It is learnt that PHC judge Justice Ejaz Anwar is not in the good books of powerful circles. Therefore, despite his seniority, he was neither elevated to the Supreme Court nor appointed as acting chief justice.
The same applies to Justice Muhammad Kamran Khan Mulakhail, who, though appointed as acting chief justice, could not secure clearance from powerful circles. Reports also suggest that he is a victim of judicial politics, and his relationships with some senior judges are not cordial.
The current situation indicates that both senior judges are unlikely to be appointed as permanent chief justices of their respective high courts.
Advocate Abdul Moiz Jaferii commented on Islamabad, saying, “It is a way to continue the farce that is the new Dogar court. There’s a bunch of good judges there, so let’s keep them all hanging and distracted”.
Speaking on Sindh, Jaferii added, it has the effect of a perpetual carrot being dangled before the senior-most judges in the province.
“Let’s see what you can do to please uswithout us really asking you to do anything specific. By keeping the corner court empty, you keep everyone in the race. And when you don’t know what you’re racing for or how long the race is, you start running cautiously. That is good enough. And it is exactly what they want.”
Lawyers believe that senior judges, who are at the helm and beneficiaries of the 26th Amendment, must take steps to restore the institution, whose independence has been compromised for the past six months.