SC vacancy: Torn between seniority and competence

CJP Gulzar Ahmed faces thorny issue of Supreme Court judge nomination

ISLAMABAD: The retirement of chief justice Asif Saeed Khosa has created a vacancy in the apex court. Who will be elevated? Bar rooms are already abuzz with speculations. But nomination could be a daunting task for the new chief justice – for more than one reason.

Two former chief justices – Mian Saqib Nisar and Asif Saeed Khosa – during their respective tenures didn’t adhere to the principle of seniority while elevating judges to the apex court. Three junior judges – Justice Munib Akhtar, Justice Qazi Amin Ahmad and Justice Muhammad Amin Uddin Khan – were elevated on the basis of “competency and reputation”.

However, The Express Tribune has learnt in background interviews that senior high court judges as well as superior bars, particularly the Lahore and Karachi high court bars, aren’t happy with the elevation of junior judges to the SC on the basis of competency.

On Dec 11, the Supreme Court Bar Association (SCBA) urged the top judges in a statement to strictly follow the Al-Jehad Trust case. It is also learnt that the SCBA would resist any elevation without adhering to the principle of seniority.

However, one section of lawyers, led by Pakistan Bar Council Executive Member Raheel Kamran Sheikh, believe seniority shouldn’t be the only factor and the criteria should include competency and reputation.

The judges’ appointment procedure has already been under criticism from bar representatives. They have passed several resolutions calling for an amendment to the Judicial Commission of Pakistan’s rules, 2010, to end the discretionary powers of the CJP in judges’ appointment.



These lawyers are urging the CJP to elevate a female judge to the apex court – something never seen before in Pakistan’s history.

Senior lawyers are proposing elevation of Peshawar High Court Chief Justice Waqar Ahmad Seth. However, the government might strongly resist his nomination due to his grisly “three-day hanging” rider to the sentence of former military ruler Gen (retd) Pervez Musharraf in the treason case.

Another challenge for the new CJP, Justice Gulzar Ahmed, could be from the Parliamentary Committee on Appointment of Judges which has expressed serious concern over the low elevation rate of judges to the Supreme Court from smaller provinces.

In a letter written to the former JCP chairman, Asif Saeed Khosa, the committee has called for giving the smaller provinces their due share in the apex court appointments in order to alleviate a sense of deprivation among them.

The committee, in its letter through JCP Secretary Arbab Arif, notes that Pakistan is a federation that consists of four provinces and the Islamabad Capital Territory (ICT). All the federating units have high courts.



The Supreme Court of Pakistan has always had judges from every province which is a reflection of [a] united federation.

“At this point in time, we observe that Punjab has got a good quota, Sindh appears to be over-represented but Khyber-Pakhtunkhwa (K-P) and, in particular, Balochistan are under-represented in the Supreme Court. There is also no judge from the ICT in the august court,” reads the letter.

The committee notes that to ensure the federal complexion, judges should be appointed to the Supreme Court from K-P, Balochistan, or the ICT. “This is more so in reference to Balochistan,… [with] only one judge in the Supreme Court … Under these circumstances, for the benefit of the federation and keeping a balance among the federating units, we consider that it would be appreciated that judges of K-P or Balochistan or the ICT be taken up as judges of the Supreme Court to avoid any feeling of deprivation by smaller provinces.

“We have observed that there has been only one judge from Balochistan for the last five years and over that period two chief justices of the province have been overlooked without any reason and subsequently retired which tends to lead to a perception that the province, already deprived, is not being given its due importance in the Supreme Court,” says the letter.

The committee asked the JCP secretary to place the point of view/submission before the chief justice of Pakistan/commission for consideration.

Currently, six Supreme Court judges are from Punjab, six from Sindh and two judges belong to K-P. Interestingly, only one SC Judge, Qazi Faez Isa, hails from Balochistan. He is also facing a presidential reference.

The JCP comprises five senior-most SC judges, the attorney general for Pakistan, the law minister, and a bar representative.

After poring over the nominations, the JCP sends its recommendation to the Parliamentary Committee for further consideration.