Ignoring seniority could ‘compromise independence of judiciary’

Supreme Court Justice Sardar Tariq Masood has said that elevation of junior judges to the apex court compromised the independence of judiciary, as he outlined his reasons for opposing the elevation of Justice Ayesha Malik of the Lahore High Court (LHC).

Justice Masood also said that it would be a pleasure to have a lady judge in the Supreme Court but stressed that the appointment must be made on merit, without discriminating her other colleagues only on the ground of gender.

“We learn from the history that we do not learn from history whenever judges were appointed,” said Justice Masood in his written opinion given to the Judicial Commission of Pakistan (JCP), which had met on September 9 to consider the nomination of Justice Malik.

Justice Malik, who is fourth in the seniority list of LHC judges, was the first woman nominated for elevation to the Supreme Court. However, her nomination failed to sail through the JCP, as the members could not evolve as consensus on the matter.

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Under the Constitution, the JCP can recommend elevation of the judge to the top court with a majority vote. On September 9, Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Attorney General for Pakistan (AGP) Khalid Jawed Khan and Law Minister Dr Farogh Naseem supported her nomination.

However, Justice Maqbool Baqar, Justice Sardar Tariq Masood and Justice, Justice (retd) Dost Muhammad Khan and Pakistan Bar Council representative in the JCP Akhtar Hussain opposed the nomination, while Justice Qazi Faez Isa, also a member of the JCP, was absent from the meeting.

In his written opinion, Justice Masood emphasised that ignoring the principle of seniority compromised the independence of judiciary and its fallout derailed the democracy. He also pointed out that the bar councils had reservation regarding the appointment of a judge against the principle of seniority.

“These reservations are the result of collective wisdom of legal fraternity and as such cannot be taken lightly,” he said. He added that the principle of seniority always prevailed in the courts while deciding the matter of civil servants for their promotion and appointment.

“If anyone is not found capable despite being senior for the position/seat of judge of the Supreme Court, the reasoning for not appointing the said senior shall be given. In case of elevation/appointment of a junior judge is made while ignoring the senior and that too without assigning any reason, eyebrow may be raised regarding their working in the high court.”

Justice Masood pointed out that LHC Chief Justice Muhammad Ameer Bhatti, Justice Malik Shahzad Ahmed Khan and Justice Shujaat Ali Khan were senior to Justice Malik and there was nothing on the record to hold that the three were not competent to become a judge of the Supreme Court of Pakistan.

“Even otherwise, there are also 24 other judges in the Lahore High Court, including Justice Ayesha A Malik, who have completed their five years service as judge of the Lahore High Court and are equally competent for their elevation/appointment as judge of the Supreme Court of Pakistan,” he further said.

“The violation of seniority and competence will not only hurt their feelings but may also give an impression of being ignored without any reason,” he continued. “Without giving valid reasoning, the three senior judges are being ignored which certainly amounts to discrimination.”

He further said: “There is nothing on the record whether they are found not competent for rest of their tenure as judge of the High Court, and if subsequently, anyone of those three, is also elevated/appointed to the Supreme Court then he will become junior to Justice Ayesha A Malik.”

Read more: Stalemate over Justice Ayesha’s elevation to top court

The apex court judge also said that the data disclosed that the number of judgments of contested cases was on the higher side of senior puisne judge than the nominated lady judge. Data regarding the disposal of cases by LHC Chief Justice Justice Ameer Bhatti has not been provided, he mentioned.

“So nothing can be said in this regard. It is also not known to anyone whether the other 24 judges who have completed their five years tenure as judge of High Court & had disposed of more contested cases than the nominated lady judge,” he told the JCP.

The SC judge revealed that he wrote a letter to JCP secretary on August 25 seeking certain information regarding the three senior-most judges of the LHC. “Although some information to the extent of two has been provided, yet the material information regarding their active practice in the High Court has been withheld which in my assessment is very relevant for considering the appointment of a judge of Supreme Court of Pakistan,” he said.

“It has been noticed with concern that no information with regard to pre- or post-elevation as judge of the High Court in respect of Mr. Justice Ameer Bhatti, Hon’ble Chief Justice Lahore High Court has been provided despite my requisition,” the judge continued.

“Withholding or not providing the pre- or post-elevation record of Mr. Justice Ameer Bhatti, as asked for, can be construed as refusal to the Judicial Commission of Pakistan.”

“It is for the Judicial Commission to recommend a name through the Parliamentary Committee for elevation/appointment of a Judge of Supreme Court of Pakistan. If someone refuses such elevation/appointment, consequences are provided in sub Article (2) of Article 206 of Constitution.

“It is also relevant to state that in the Constitution of Pakistan there is no provision or concept for “NO OBJECTION” by the senior judge/judges as such the record of Mr. Justice Ameer Bhatti is also required for a decision upon the agenda of this meeting, hence before proceeding.”

He said that the main grounds for the elevation/appointment of Justice Malik, according to letter, were ‘competence’ and ‘gender’. So far, gender was concerned, he continued, the Constitution of Pakistan was clear in sub-Article (2) of Article 25 that “there shall be no discrimination on/the basis of sex”.

“Furthermore, sub-Article (1) of the said Article contemplates that ‘All citizens are equal before law and are entitled to equal protection of law’. Likewise, sub-Article (1) of Article 27 stipulates that “no discrimination can be made on the ground of race, religion, caste, sex, residence or place of birth”.

“So no preference can be given on the basis of gender nor any discrimination can be made on this score. The aforesaid Articles of the Constitution of Pakistan clearly lay down that the position of a Judge of the Supreme Court of Pakistan cannot be filled on the basis of gender and preference,” he argued.

“On the basis of discussion, I am not inclined to approve the proposal contained in letter dated 20th August 2021, for elevation/appointment of Mrs. Justice Ayesha A. Malik as judge of the Supreme Court of Pakistan.”

While signing off, Justice Masood mentioned that he was a strong supporter of women empowerment, not only in judiciary but also in all spheres of life, stressing that his only intention was to preserve the prestige of the judiciary.

“It would be indeed a pleasure to have a lady judge in the Supreme Court of Pakistan but of course on merit and without discriminating her other colleagues only on the ground of gender. I apologize if I have hurt anyone’s sentiments as my only intention is to preserve the dignity and prestige of the judiciary.”