The Supreme Court on Friday made public an audio recording of the Judicial Commission of Pakistan’s meeting from a day earlier, which had come under controversy after two of its members questioned the veracity of the press release issued on the rejection of the chief justice of Pakistan’s nominees for the higher judiciary.
“In these exceptional circumstances the Honorable chairman JCP has been pleased to relax the restriction under Rule 5(4) of the JCP Rules, 2010 and has directed for the audio recording of the JCP proceedings of 28.07.2022 to be made available on the official website of the SCP,” read a statement issued alongside the recording. It said the portion of the audio recording that was used to declare the meeting had been deferred—rather than the nominees rejected—occurred from 1:29:45 to 1:38:08 of the proceedings. “[It] contains the statement by the worthy Attorney General for Pakistan that the matters under discussion should be deferred to frame the appropriate rules. He did not assess or reject the merits of any of the High Court judges proposed for appointment to the SCP,” it said.
“As a result, 5 members of the JCP supported the deferment of the meeting as reported in the Press Note of 28.07.2022,” it added.
According to the audio provided, JCP member Justice (retd.) Sarmad Jalal Osmany rejected the nomination of Sindh High Court’s Justice Naimatullah Phulpoto but accepted the other four nominees. However, he never referred to any adjournment. Justice Sajjad Ali Shah, meanwhile, accepted all five nominations and approved their elevation to the Supreme Court, as did Justice Ijazul Ahsan and CJP Umar Ata Bandial.
None of the judges used the word “adjourn or defer” as stated in the original Supreme Court press release. However, as stated in Friday’s press release, Attorney-General for Pakistan Ashtar Ausaf Ali did state the meeting should be deferred until the JCP can amend rules and establish criteria for elevation of judges to the Supreme Court. Stressing that the JCP has a “heavy responsibility,” he also rejected all the nominees.
Justice Sardar Tariq Masood, meanwhile, cited data from the judgments of the nominees and compared how much of them had been upheld by the Supreme Court. Emphasizing that the seniority principle should be followed, he echoed Justice Isa in saying the Constitution did not permit the filling of posts based on anticipated vacancy. He said that if one judge—Sajjad Ali Shah—was being given the right to nominate their successor, then everyone should be given the same right. However, he stressed, this was against the Constitution.
Rejecting the nominees, Justice Masood said the process should not resume until matters relating to the seniority principle of chief justice of Peshawar High Court had been decided. He also proposed the names of Islamabad High Court Chief Justice Athar Minallah, Sindh High Court Chief Justice Ahmed Sheikh and Justice Ameer Bhatti’s elevation to Supreme Court.
Law Minister Azam Nazeer Tarar, meanwhile, asked the commission to revisit the Amir Bhatti judgment that clips the powers of judges’ parliamentary committee. Rejecting the nominations, he said he agreed with the views expressed by Justice Masood.
Pakistan Bar Council representative Akhtar Hussain rejected all the nominees.
Justice Isa spoke last, saying he wished to first listen to the CJP because he had already suggested adjourning the meeting. He said the CJP had no unilateral power to nominate anybody. “We all are equal and can nominate and all of us carry one vote to decide. This is not about winning or losing but a question of future. You are bypassing chief justices,” he said, as he rejected all the nominees.
At this point, the CJP can be heard saying: “let’s rise” and leaving the room. The audio then contains Justice Isa and Justice Masood questioning if the meeting had truly ended and wondering about the minutes of the meeting.
The JCP had met to consider elevation of Peshawar High Court Chief Justice Qaiser Rasheed Khan, Justice Shahid Waheed of the Lahore High Court, and Justice Syed Hasan Azhar Rizvi, Justice Muhammad Shafi Siddiq and Justice Naimatullah Phulpoto from the Sindh High Court to the Supreme Court. All these nominees were proposed by the CJP.
Earlier, two members of the JCP, Justice Qazi Faez Isa and Justice Sardar Tariq Masood, had claimed that the meeting had rejected the CJP’s nominees, contrary to a press release issued by the Supreme Court that had claimed it had been deferred to allow the CJP to place additional information and data about the nominations and add more names to the list for consideration, if he considered appropriate.
Both judges had also noted that instead of dictating the decisions taken during the meeting, CJP Bandial had abruptly left the meeting, followed by Justice Ijazul Ahsan.