Hafiz Ahsaan Ahmad hokhar
There are three seats available for the fresh appointment of judges against the total sanctioned strength of 17 judges of the Supreme Court of Pakistan. The litigants and lawyers have always raised their voices and requested on many occasions that their cases filed in the Supreme Court should be heard and decided at earliest for the sake of timely dispensation of justice. They have all rights and justification to state this, but due to many reasons, this list of pendency has been increased in many thousands in recent years despite best efforts of the Supreme Court both on judicial and administrative sides.
There is now pendency of Supreme Court is 52979 as on 15th May 2022 in different case categories including 2749 Jail petitions,7644, Criminal petitions, 9828, Civil appeals, 29841, Civil petitions leave to appeals, 1279, Review petitions and 805 Criminal appeals, HRC 133 and SMC 29 etc. The continuation of this stated vacant positions of judges if allows continuing and not timely filled in and simultaneously the strength of judges of the Supreme Court would not be increased on immediate grounds by the Parliament, which this suggestion has strong legal justification with the background by increasing in courts litigation, legal disputes and country’s population in the last two decades, this pendency would rise in many folds in future.
The composition, criteria and qualification for the appointments of Chief justices and judges in Supreme Court and High Courts of Pakistan have been prescribed in Articles 175,176,177,182,192 and 193 of the Constitution of Islamic republic of Constitution. As per Constitution, the Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President of Pakistan in accordance with Article 175A of the Constitution. The strength of judges of the Supreme Court was lastly increased in November, 1997 through the Act of Parliament which states that the number of judges of the Supreme Court other than the Chief Justice shall be sixteen.
The framers of the Constitution of Pakistan have introduced two different criteria under Article 177 (2) (a) and Article 177 (2) (b) of the Constitution. The Constitutional criteria for the qualification and appointment of a judge in Supreme Court has been laid down under Article 177 (2) (a) and 177 (2) (b) of the Constitution, which are that a person who has for a period of, or for periods aggregating, not less than five years been a judge of a High Court or has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court are eligible for the appointment. The appointment of a judge on the vacant seat in the Supreme Court is treated as an independent and always being considered undeniably as a fresh appointment under the Constitution.
The intention, analogy and wisdom of the framers of Constitution behind incorporating Article 177 (2) (b) of the Constitution in addition to Article 177 (2) (a) relating to fresh appointment of judges in Supreme Court was to bring the best professionals among lawyers as judges in Supreme Court for the qualitative working in Apex Court who may have vast practical experience and background in different legal fields, but the same is not being implemented regularly. It is also an admitted fact that despite many changes made in the Constitution through various Constitutional amendments, the incorporated position of Article 177 (2) (b) of the Constitution relating to fresh appointment of judges in the Supreme Court has not been changed yet. No provision of Article of the Constitution can go ineffective for a longer period especially relating to the process of appointments in Apex court.
The members of premier Bar Associations of Pakistan and lawyers throughout the country in the last few years showing great concerns, reservations and have requested in writing many times on different judicial occasions that the appointment process of judges in Supreme Court and High Courts should be transparent, streamlined and to elevate the best professionals and they have every very valid reasons behind their recommendations and thus required genuine considerations by the decision makers. It is also an admitted fact that in recent years many appointments have been made by the Judicial Commission of Pakistan among those judges from the High Court as judges in the Supreme, who happened to be juniors in their seniority and as well among those judges, who retired from their positions as judges of the respective High Court. There is also great strength in such an argument that for fresh appointment of judges in the Supreme Court, the best possible legal minds in addition to seniority should be brought into by considering the principles of fitness, legal acumen and judicial performance.The timely fulfillment of seats through both process simultaneously given under Article 177 (2) (a) and Article 177 (2) (b) of the Constitution of Pakistan for fresh appointment and to increase in strength of judges in Supreme Court would pave a way to address the issues of fixation of cases, resolution of long pendency of case lists and would provide as well a great window and good option for the top judiciary and the Judicial Commission of Pakistan for taking good slots among the lawyers for the sake of best, qualitative and timely judicial deliverance in Supreme Court of Pakistan. These steps would be an effort to avoid the perception and consequence of a maxim “justice delayed justice denied”.