PBC challenges LHC CJ’s appointment over violation of seniority principle

Petition filed in SC's Lahore Registry, making the federation, JCP and parliamentary committee respondents

LAHORE:

Pakistan Bar Council’s (PBC) members challenged the appointment of Justice Aalia Neelum as Chief Justice of the Lahore High Court (LHC) in the Supreme Court of Pakistan Lahore Registry, terming it as a sheer violation of the seniority principle, constitutional convention, independence of judiciary, fundamental rights enshrined under the Constitution of Pakistan, 1973 and the rule of law.

They requested the court to set aside that impugned notification issued on July 10 by appointing Justice Neelum as Punjab's top judge.

PBC members Tahir Faraz Abbasi, Munir Ahmed Kakar, Abid Shahid Zuberi, Shahab Sarki, Shafqat Mehmood Chauhan, Chaudhary Ishtiaq Ahmed Khan and Chaudhary Ikhlaq Ahmed filed the plea, making the federation, the Judicial Commission of Pakistan (JCP) and parliamentary committee respondents through their secretaries.

They also requested the court to pass directions that the constitution of the JCP shall be completed in accordance with Article 175 of the Constitution of Pakistan for the appointment of Chief Justice of the Lahore High Court.

They further maintained that after its constitution, the commission must reconvene and consider the appointment of the senior most judge of the Lahore High Court as the Chief Justice of the Lahore High Court.

The petitioners also raised twelve points of law and public importance questioning “whether the appointment of Chief Justice of the Lahore High Court, in violation of the seniority principle, is a matter of public importance under Article 184 (3) of the Constitution of Pakistan, 1973 and the judgment of this court in the case of Al-Jehad Trust versus the Federation of Pakistan (cited in PLD 1996 SC 324)”.

They also questioned whether the JCP was properly constituted on July 2 wherein the decision to nominate the Chief Justice of the Lahore High Court was made.

The petitions inquired whether judicial appointments made in violation of the seniority principle are a threat to access to justice, independence of the judiciary, fundamental rights, and the rule of law.

They further objected to whether judicial appointments, made in violation of the seniority principle, are a threat to the faith and confidence that the public places in the judiciary.

The petitioners contended that the office of LHC chief justice became vacant after the elevation of Justice Malik Shahzad Ahmad Khan to the Supreme Court on June 7, 2024, following which Justice Shujaat Ali Khan was appointed as acting chief justice of the LHC.

Thereafter, the JCP convened a meeting to consider the nominations of three judges for the position of Chief Justice of LHC, including acting Chief Justice Shujaat Ali Khan, Justice Ali Baqar Najafi, and the now Chief Justice of the Lahore High Court, Justice Aalia Neelum.

At this juncture, it is pertinent to highlight that Justice Neelum was the most junior amongst the three candidates for the post of Chief Justice of LHC.

The most senior was the acting Chief Justice Khan, who was appointed as additional judge on March 27, 2012, the second in the list was Justice Ali Baqar Najafi, who was appointed on April 16, 2012, and Justice Aalia Neelum who was appointed as an additional judge on April 12, 2013.

The petition maintained that the people need to have faith that judicial appointments are made in accordance with the rule of law, meritocracy, and fairness and an appointment that is made in violation of the said principles seriously threatens the rule of law in the country, which is the bedrock of the Constitution.

The seniority principle, as laid out in the seminal judgment of Al-Jehad trust, is also a constitutional convention.

For example, if judges start to believe that their appointment to the post of Chief Justice of the High Court or elevation to the Supreme Court turns on the subjective views of the members of the superior judiciary, then their independence can be compromised.

However, if judges are aware that their appointment, as Chief Justice of a High Court or elevation to the Supreme Court only turns on the principle of seniority, then junior judges will not feel pressured to be on good terms with or act in accordance with the wishes of certain members of the judiciary and this will only inspire further confidence in the independence of the judiciary amongst the public.

The Al-Jehad Trust judgment also maintains that if the senior most judge is not appointed as the Chief Justice of the High Court then concrete and valid reasons are to be recorded by the President/Executive in the absence of which the senior most judge would be entitled to be appointed as the Chief Justice.

However, the minutes of the meeting reveal that the JCP has grossly misinterpreted the Al-Jehad Trust judgment as it is stated in paragraph three of the minutes, “The said judgment has held that the most senior judge had a legitimate expectancy to be appointed but it was not an entitlement as of right”.