Seniority and merit

For the first time in the judicial history of Pakistan, the Judicial Commission of Pakistan (JCP), through a majority decision, nominated a woman judge for elevation to the Supreme Court of Pakistan. Justice Ayesha Malik, if appointed, would be the first woman and 42nd judge of the Supreme Court, superseding her senior colleague judges of the high court.

On January 5, when the JCP meeting was called, the Pakistan Bar Council and all other lawyers’ bodies had announced a nationwide strike and had urged the postponement of the JCP meeting, on the ground that recommendation of Justice Ayesha for elevation to the SC was against the ‘principle of seniority’.

Last year, when Justice Sayyed Muhammad Mazahar Ali Akbar Naqvi was nominated as judge of the Supreme Court by the JCP, not only had the Bar but the then chief justice of the Peshawar High Court, the late Justice Waqar Ahmad Seth had also made a representation to the chairman of the Judicial Commission of Pakistan, requesting his elevation as the judge of the Supreme Court, considering the fact that he was the most senior among all five chief justices of the high courts and Justice Naqvi was fifth on the seniority list of the Sindh High Court.

In his correspondence, Justice Waqar had quoted two important judgments of the Supreme Court including the famous Al-Jehad Trust case. Besides pointing out the unconstitutionality of the out-of-turn elevation of junior judges to the Supreme Court, Justice Waqar had contended that he had a legitimate expectancy to be appointed as a judge of the SC based on his seniority, suitability and merit and had been ignored and superseded, without an opportunity to be heard. That was a unique situation, when a sitting chief justice of a high court pressed the point of seniority for the appointment of a judge of the Supreme Court.

If we investigate, the JCP got its present form and powers with the advent of the 18th and 19th amendments. Article 175-A defines the composition, procedure and powers of the JCP and the Parliamentary Committee on the appointment of the judges. The JCP is a powerful and independent body, mainly dealing with the appointments of the judges of the superior courts, and mainly controlled by the judiciary.

In the pre 18th Amendment era, the executive had more of a role in the process of the appointment of the judges of the high court and Supreme Court. These appointments were made by the president in ‘consultation’ with the chief justice. Consequently, under Article 177 of the constitution, the chief justice would send a list of the nominees and the president would appoint after selecting.

Circumspectly, in the famous Al-Jehad Trust case reported as PLD 1996 Supreme Court page 324, (pre 18th and 19th amendments) the Supreme Court while interpreting Article 177 and other provisions of the constitution held that the “consultation” between the president and the chief justice for the appointment of the judges of the superior courts should be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play”.

It was further held that the “Appointment of a judge has to be transparent so that the litigant public and people at large have faith in the independence of [the] judiciary – Appointment of a judge and the mode and manner in which he is appointed has close nexus with the independence of [the] judiciary and cannot be separated from each other”.

The SC conscientiously found that “there seems to be wisdom in following the convention of seniority. If every judge in a high court aspires to become chief justice for the reason that he knows that seniority rule is not to be followed, it will adversely affect the independence of the judiciary. The junior-most judge may feel that by having good terms with the government in power he can become the chief justice, this will destroy the institution and public confidence in it”. The SC prudently quoted that seniority among the judges of the high courts is of admitted significance in the matter of future prospects.

Factually, the Al-Jehad Trust judgment was the significant step to ensure the independence of the judiciary by minimising the executive’s role in these appointments and thus has relevance to the appointment of the chief justice of the high court(s) by sticking to the principle of seniority.

Admittedly, there is no explicit provision for seniority in the constitution for the appointment of the judge of the Supreme Court nor is there any constitutional convention; rather, the apex court has observed that “the appointment of a judge of the high court as a judge of the Supreme Court is a fresh appointment and not a promotion”.

Recently, among the 41 junior judges elevated to the SC, three junior judges Justice Munib Akhtar, Justice Muhammad Amin-ud-din Khan and Justice Muhammad Ali Mazhar were elevated based on “competency and reputation”. But the Bar has pressed on following the principle of seniority and on all occasions has boycotted court proceedings.

Importantly, in the absence of any specific constitutional, legal and procedural criteria to gauge the ‘competency’ of judges for elevation to the Supreme Court, the Bar’s argument of sticking to the principle of seniority seems genuine. Secondly, the elevation of junior judges to the Supreme Court may also raise serious questions on the competency of senior judges, who are superseded.

Consequently, besides seniority, which can be considered a component for such appointments, in order to ensure transparency and meritocracy, there should also be certain criteria for determining the “competency and reputation” of a judge.

The overdue nomination of Justice Ayesha’s nomination to the Supreme court is a ray of hope for the nation, but institutionalism and ensuring true gender balance in the apex judiciary can only be achieved when parliament not only reforms Articles 175-A and 177 of the constitution but also initiates other important legal and procedural reforms, including women’s representation in the JCP.

The writer is a Peshawar-based lawyer. He tweets @ s_irshadahmad and can be reached at:

irshadahmadadvocate@gmail.com