Islamabad:
The constitution of banks in high profile cases has remained a controversial issue in the Supreme Court since March 2009.
The term “Bank of related ideas” continues with weight even after the 26th constitutional amendment, which demanded that the nomination of judges for constitutional banks be approved by the Judicial Commission of Pakistan (JCP).
The Executive retains considerable influence on the decision making of the JCP, both in the appointment of judges and in their selection of constitutional banks.
A section of legal fraternity believes that judicial independence has been compromised due to how JCP works. Some judges of the High Level Apex Court have been accused of facilitating the Executive in their influence on JCP’s decisions.
It is a matter of registration that the three main political parties of the country, PTI, PML-N and PPP, have been at the receiving end of the judgments approved by the so-called related ideas banks since 2009.
Before the 26th amendment was promulgated, the main judges were often accused of forming banks of related ideas to ensure favorable results.
The term won one more currency during the mandate of the former president of the Supreme Court Mian Saqib Nisar, when the judges received as hostile to the PML-N were constantly assigned to politically consistent cases, decisions that, in many ways, restructured national policy.
Similar concerns were raised during the holdings of the old CJPS Gulzar Ahmed and Umar ATA Bandial, with PML-N and PPP often questioning the composition of banks in sensitive cases.
To introduce the transparency in the Bank formation, the Law of the Supreme Court (Practice and Procedure) of 2023 was approved, establishing a committee of judges of three members, including the President of the Supreme Court, to constitute banks.
Later, to further consolidate control over judicial appointments, the 26th amendment was approved, giving the JCP the authority to select the judges for constitutional banks, where, according to reports, the Executive maintains a significant influence.
Judges that are perceived as it is likely to raise difficult questions, in many cases, have been marginalized of constitutional banks.
Although the amendment has been in force for more than six months, clear criteria have not yet been formulated to nominate judges to these banks.
Currently, 15 judges from all provinces have been nominated for constitutional banks.
However, several senior judges, considered are not in the “good books” of the Executive, have been omitted, despite being among the most respected and competent members of the bank.
The current committee responsible for selecting judges for constitutional banks is led by Judge Aminuddin Khan and includes Judge Jamal Khan Commandkhail and Judge Muhammad Ali Mazhar.
The conduct of this committee has also been subject to scrutiny for allegedly continuing the tendency to form banks of related ideas in high profile cases.
For example, the Committee did not nomine Judge Shahid Waheed in the bank who heard the case of the military courts.
Similarly, judges with experience in tax matters were not included in the bank that judged the case of super taxes.
More recently, the Committee has received criticism for excluding five judges from the Review Petitions of the Banking Hearing in the reserved case of seats, which challenges the decision of July 12 of SC.
Faisal Siddiqi, lawyer of the Sunita Ittehad (sic) Council, has formally challenged the composition of this bank.
Even the seated judges, only Ayesha Malik and Judge Aqeel Ahmad Abbasi, have expressed serious concerns about the largest bank composition that listens to review requests.
During the audience on Tuesday, signs of a divided bank were seen.
Judge Aminuddin Khan seemed reluctant to give the SIC lawyer to submit a request that challenges the Bank’s composition.
However, Judge Jamal Khan Commandkhail intervened, emphasizing that the lawyer should have a fair opportunity to raise objections.
After this intervention, the bank decided to postpone the procedures until Monday.
It has been considered a growing perception: while former CJPS were seen as forming banks of related ideas, the current dynamics suggests that banks are now being formed “aligned by the Government”, with the tacit cooperation of certain judges.
Unless transparency is presented to the process of constitution of banks, the legitimacy of the Judiciary can be considered more and more.
