The abrupt ending of the Judicial Commission of Pakistan’s (JCP) meeting to consider the elevation of judges to the Supreme Court upon the issue of seniority versus selection has stirred new debates, which has had a far-reaching effect on the political system of Pakistan. Reportedly the JCP — by a majority of five to four votes — did not accord approval to the elevation of five judges of the high courts nominated by the Chief Justice of Pakistan (CJP) to the Supreme Court due to divergent views on the principles of elevation. However, the CJP released audio of the JCP meeting, which was followed by a statement that contended to have deferred the meeting to seek more information on the recommended judges and add more names.
The controversy surfaced even before the meeting was held when the Supreme Court Bar Association’s President, Bar Associations, Pakistan Bar Council and Justice Qazi Faez Isa expressed their public dissent about the appointment of junior judges in the apex court. In a letter, Justice Faez said that ignoring the longstanding practice of appointing senior judges to the Supreme Court was not a good practice. He asserted that factors such as seniority, merit, and competence were the paramount considerations in the elevation of judges but the elevation of a junior to make it to the top court bypassing the chief justice was improper. The issue had cropped up during the elevation of Justice Ayesha Malik as well. The Supreme Court Bar Association and Pakistan Bar Council even went on a countrywide protest to oppose the elevation on the grounds of perceived disregard for the principle of seniority, yet she was elevated.
From the perspective of the right of the public office holder, a senior has a legitimate expectation of being promoted or elevated, whatever the case may be. But, in such a high pontiff office, mere seniority could not be the only principle. In this regard selection tempered with seniority is generally taken as the principle. However, when the qualifications of two candidates are otherwise equal, the senior is preferred for promotion. The other determining factor is efficiency and honesty. So, if there is nothing adverse against a senior, then ignoring him or her must be based on sound reasons.
On the other hand, the view of exclusive seniority is contested on the ground that seniority as a legal prerequisite is a myth and “there is no requirement in law and Constitution” of Pakistan. According to a statement issued by Women in Law Pakistan Initiative “at least 41 times judges have been appointed to the Supreme Court without them being most senior. There is, therefore, no such custom either. Seniority is at best a mere demand of some members of the Bars at the moment and has no legal basis”. According to Article 175-A (3) of the Constitution which “speaks of seniority only about the appointment of the Chief Justice of Pakistan”.
Additionally, according to Article 177(2) of the Constitution, to be eligible for appointment as a judge of the Supreme Court, a person must be a citizen of Pakistan, a judge of the high court for five years, or an advocate of the high court for 15 years. Therefore, the absence of the words the most senior in the said Article does not make it mandatory to appoint the senior most judge of the High Court as a judge of the Supreme Court. This Article even allows an advocate of the High Court with 15 years of practice to be appointed as a judge of the Supreme Court.
Thus, the utmost considerations for the appointment of judges to the Supreme Court have to be skills of interpretation of the law, independence, impartiality, and honesty. Seniority has to be coupled with other factors such as the number of cases, the number of reported cases and backlog, etc. During the appointment, it is important to ensure that the judges have the right calibre to perform their duties because they are guardians of the Constitution and have ultimate authority to interpret the law.
In India, the president makes such appointments after consultation with the chief justice of India. In this respect the chief justice is also required to consult the four most senior judges of the Supreme Court before tendering advice, thereby changing the nature of this recommendation from a personal to a collegiate one. In other words, the appointment process is cooperative and requires the joint assent of the executive and judicial branches. The seniority principle has been ignored thrice in the history of the court, amidst heavy criticism. In the US and the UK, the seniority principle is not followed.
Unfortunately for Pakistan, the country has remained under prolonged periods of dictatorial rule, which have disrupted the system. Resultantly, judges have been picked based on the interests of the incumbent regimes.
Even in the recent past, many judges of the High Court made it by accident and not merit by acquiring acquaintance with the former Chief Justice Iftikhar Muhammad Chaudhry during the lawyers’ movement. Had there been no such movement they would not have been on benches. Here it is worth mentioning that Islamabad High Court in W.P. No. 08 of 2020 Sikandar Hayat Maken Vs Federation of Pakistan, etc has held that promotion from 21 to 22 has to be made based on merit and not mere seniority, which equally applies in the matter of elevation of judges to the Supreme Court.
In the light of the aforementioned discussion, without being prejudiced against anyone, there is a need to set a well-thought-out criterion quantitatively factoring in other considerations such as seniority, merit, and other skill sets. Seniority alone cannot be the overriding consideration.
Published in The Express Tribune, August 3rd, 2022.
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