Justice Waqar approaches JCP over not being elevated to SC

Questions why junior judges of the LHC were appointed in the SC instead

Peshawar High Court (PHC) Chief Justice Waqar Ahmed Seth has approached the Judicial Commission of Pakistan (JCP) over not being elevated as a Supreme Court judge and said the recent ‘out of turn’ elevation of junior Lahore High Court (LHC) judges to the SC is unconstitutional.

“The petitioner has a legitimate expectancy to be appointed as a judge of the Supreme Court on the basis of his seniority, suitability and merit, but he has been ignored and superseded thrice without affording him an opportunity to be heard,” said a letter written by Justice Seth to the JCP chairman.

The JCP is a commission for the appointment of the Supreme Court and high court judges in Pakistan. The Chief Justice of Pakistan Gulzar Ahmed is the JCP chairman. In its March 5 meeting, the JCP nominated the LHC’s Justice Sayyed Mazahar Ali Akbar Naqvi as a judge of the Supreme Court.

The letter said the appointment of the LHC judges has been made in violation of the principle of seniority. Due to being superseded, Justice Seth said, he has been disqualified for elevation to the SC. Even if elevated, he will now rank lower than the junior judges.

The letter argued that out of turn elevation of three junior LHC judges to the apex court would damage the image of the judiciary. Justice Seth also referred to the apex court rulings which support elevation to the SC on the basis of seniority.

The letter requested that the petitioner “having a legitimate expectancy to be appointed as a judge of the Supreme Court” might kindly be recommended for appointment as a SC judge “on the basis of his seniority, suitability and merit.”

The Supreme Court Bar Association (SCBA) President Qalb-i-Hassan condemned the letter and said it is not appropriate for a judge to present himself for elevation to the SC.

“It is not mandatory to elevate the senior most judges to the SC. Even the Sindh High Court Chief justice Ahmed Ali M Sheikh is more senior than Justice Seth. Likewise, Justice Mazahar Ali Akbar Naqvi was appointed as a LHC judge in Feb 2010, while Justice Seth was nominated as a PHC judge in August 2011.”

Lawyers are divided over the elevation of judges on the principle of seniority. One section of the legal community has a consistent view that seniority should not be the only yardstick and the criteria should include competence and reputation.

Two former chief justices – Mian Saqib Nisar and Asif Saeed Khosa – during their respective tenures did not 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 Aminuddin Khan – were elevated on the basis of “competency and reputation”.

The SC in its judgment in the Faqir Khokhar case has already maintained that appointment of the SC judge is a fresh appointment and a junior judge can also be elevated.