• SC cites audio recording of AGP that led to deferment of meeting as claimed by the PRO.
• SC says audio shows AGP did not assess or reject merits of any of high court judges proposed for elevation to apex court.
• Audio was released after justice Qazi Faez Isa and Justice Tariq Masood contradicted SC press release on JCP meeting.

ISLAMABAD: Following criticism from two judges, the Supreme Court of Pakistan uploaded the audio of the Judicial Commission of Pakistan’s (JCP) meeting on its website.

“In these exceptional circumstances the Hon’ble 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,” said a statement issued by the apex court.

The Supreme Court, in its statement, claimed that the “audio recording from time slot 1:29:45 to 1:38:08 contains the statement” made by Attorney-General for Pakistan Ashtar Ausaf Ali, led to the deferment of the meeting as claimed by the PRO.

The statement also claimed that the AGP “did not assess or reject the merits of any of the High Court judges proposed for appointment to the SCP”.

“As a result, 5 members of the JCP supported the deferment of the meeting as reported in the Press Note of 28.07.2022,” said the SCP.

What does the audio say?

As per the audio, Justice (retd) Sarmad Jalal Osmany rejected the nomination of Sindh High Court’s Justice Naimatullah Phulpoto and accepted the other four nominees. But he does not use the word defer or adjournment

The second opinion was taken by Justice Sajjad Ali Shah who accepted the five nominations and approved their elevation to the Supreme Court. While Justice Ijaz Ul Ahsan lauded the judgement of Justice Shahid Waheed compared to the other nominees and then fully endorsed all the judges nominated by CJP Umar Ata Bandial for elevation.

Interestingly, none of the judges used the word “adjourn or defer” as claimed by the Supreme Court’s press release issued right after the meeting.

On the other hand, Justice Sardar Tariq Masood, while speaking on the nomination, used data from the judgments issued by the judges and compared how much of that has been upheld by the Supreme Court.

After giving all the data, Justice Masood then emphasised that the seniority principle should be followed in the case and also states that the constitution does not allow the filling of posts based on anticipated vacancy.

The judge also tells the commission that if one judge is being given the right to nominate their successor, then everyone should be given that right, but clarified that this is against the Constitution.

On the matter of Justice Qaiser Rashid Khan’s elevation, he said that his case should be compared with the other high court chief justices. He also said that Islamabad High Court’s Justice Athar Minallah and Justice Ahmed Shaikh should be considered for elevation.

The judge also shared that when he had spoken to him about the IHC CJ’s elevation, he was told by the CJP said that Article 165 of the Constitution does not allow the elevation of judges from the Islamabad High Court.

However, Justice Masood clearly disapproved all the CJP’s nominations while stressing on the need to defer the process of appointment until the matter relating to the seniority principle of chief justice of Peshawar High Court is decided. 

He also suggested names of Chief Justice Islamabad High Court Ather Minallah and Chief Justice Sindh High Court Ahmed Sheikh and Justice Ameer Bhatti’s elevation to Supreme Court. 

Following him, Law Mister Azam Nazir Tarar asked the commission to revisit the Amir Bhatti judgment which clips the powers of judges parliamentary committee and disapproved the nominations, while siding with Justice Tariq Masood’s views.

After the minister, Attorney-General for Pakistan Ashtar Ausaf Ali spoke about the matter and told the commission that they have “heavy responsibility”. 

The AGP, while agreeing with Justice Tariq Masood’s disapproval of the nominees, stated that the meeting should be deferred until the rules are amended and criteria is set.

Interestingly, the AGP’s audio was cited by the Supreme Court in its press release, however, it needs to be heard in full context.

When PBC representative Akhtar Hussain was asked to speak, he disapproved of all the appointments.

Justice Qazi Faez Isa was initially asked to speak first but opted to give his comments at the end as he wanted to listen to the CJP because he had already suggested adjournment of the meeting.

However, when Justice Isa was asked to speak, he rejected the nomination.

Interestingly, at this point of the audio, CJP Bandial left the meeting abruptly as said by Justice Masood and Justice Isa in their letters.

What is the controversy?

The controversy started when sources told Geo News that the JCP had rejected the nomination of the judges proposed by the CJP for elevation to the Supreme Court.

However, the official statement issued at the meeting said that the JCP chairman, after detailed discussion, proposed to “defer the meeting in order to enable the Hon’ble Chief Justice of Pakistan to place additional information and data about those already proposed and if he considers appropriate, add more names to the list of proposees for consideration by the JCP”.

“The proposal to defer the meeting was supported by Mr Justice Ijaz-ul-Ahsan, Mr Justice Sajjad Ali Shah, Mr Justice (Retd) Sarmad Jalal Osmany and the Attorney General for Pakistan. It was accordingly decided to defer the meeting. The date of the next meeting will be communicated to the Members of the Judicial Commission by the Chairman, JCP,” said the statement.

Justice Qazi Faez Isa and Justice Masood reject SC version

Following the SC statement, Justice Isa and Justice Masood wrote letters to JCP contesting what was said by the PRO in a statement.

Justice Masood said that the press release issued by the SC PRO presented a “totally different version of events from what actually occurred”. He also called for the “immediate release of factual and correct detailed minutes of the meeting while giving detail of observations/discussions of each member in the meeting room”.

Justice Isa, in his letter, stressed that JCP’s decisions made on the appointment of judges be released publicly.

Justice Isa had stated what justice Masood had said that CJP Bandial “did not dictate the decisions that were taken, and left the meeting quite abruptly, followed by Justice Ijaz-ul-Ahsan”.