The seniority principle

Political thinkers and the legal fraternity are in limbo; they cannot answer a hard question: should an SC judge be appointed on the basis of seniority or on merit (based on objectivity)?

Without directly touching upon this matter, let us first rewind the clock and relive the obscuring moment that de-shaped the political, legal and constitutional fabric of Pakistan.

During the tenure of Sir Abdul Rashid as the chief justice of the federal court (predecessor to our august Supreme Court), Justice Munir was the chief justice of the Lahore High Court. He clung to this position by refusing elevation. In his place, judges who were junior to him had to be elevated to the Federal Court.

Upon Sir Abdul Rashid’s retirement, ASM Akram from erstwhile East Pakistan, as the next most senior puisne judge of the Federal Court, was expected to be appointed the chief justice of Pakistan.

Ghulam Muhammad, the then governor-general of Pakistan, intended to replace Sir Abdul Rashid with a British law lord. Justice ASM Akram, commanding immense respect and dignity, did not like it. As a reflex action he subtly put his view across that if he was unsuitable, any justice from the Federal Court would be preferable over an imported chief justice.

There began the derailment of democracy. Ghulam Muhammad appointed Justice Munir as the chief justice of the Federal Court by superseding four sitting Federal Court senior judges. It made him indebted and obliged to the governor-general and he repaid this debt with a compound interest, and democracy suffered in our country.

In 1954, when the governor-general dissolved the first Constituent Assembly which was busy framing a constitution for the newly-born state, Justice Munir came to the rescue of the governor-general in the Maulvi Tamizuddin Khan case by overturning well-reasoned judgment where the Sindh Chief High had restored the Constituent Assembly. To date, the nation is paying a heavy cost of such judicial, constitutional, legal and political blunders.

Justice Munir is also single-handedly responsible for introducing the ‘doctrine of necessity’ and the ‘principle of legitimacy of a successful revolution’ into the constitutional, legal and political fabric of Pakistan. He spoke through his judgments to judicially legalize and legitimize the imposition of martial law in Pakistan. His judgment paved the way for ‘adventurism’ in Pakistan.

Oliver Wendell Holmes Jr, an American jurist, once said: “the life of the law has not been logic; it has been experience.” This famous epithet has special relevance to our political system. It is a key to unlock the reasons of various legal and political dilemmas we face. Strangely, we have a tendency not to learn from our bitter experiences.

The moral of this unhappy story of our nation is that whenever appointment was made in utter disregard of seniority principle, Pakistan suffered, democracy derailed and our journey towards becoming a nation halted.

The constitution is silent regarding any criteria to be adhered to for appointment of SC Judges, and yet Article 177(2) of the constitution provides a minimum requirement: a person should have been a judge of a high court in Pakistan for not less than five years or an advocate of a high court for not less than 15 years.

The Supreme Court has examined the principle of seniority in the seminal case of Al Jehad Trust reported in PLD 1996 SC 34 wherein it held that the most senior judge of a high court had a legitimate expectation to be considered for appointment as the said court’s chief justice. However, the ratio of this judgment provides no answer to the moot point we are seeking to resolve.

Does the principle of seniority apply to the appointment of SC judges? The answer may be found in the case titled ‘Supreme Court Bar Association v Federation of Pakistan’ which clarifies that the principle of seniority and the doctrine of legitimate expectation are restricted to the appointment of the chief justice of a high court and the chief justice of Pakistan only and the said principle could neither be applied nor be extended to the appointment of SC judges.

Article 177(2) of the constitution tells that seniority per se is not a criterion for the appointment of SC Judges. It is arguable and may be correct to suggest that the principle of seniority cannot be a standalone principle for the appointment of SC Judges because the Supreme Court is the custodian of our constitution, the guardian of fundamental freedoms and rights, and the final arbiter.

The Supreme Court must be run by the brightest, competent and independent legal minds of the country. SC judges ought to possess the ability to find and deduce the true meaning, purpose and spirit of law in the context of democracy, political system and constitutional framework within which the law operates and in effect, interpret it to bring out its best meaning, real purpose and true spirit while deciding causes.

What criteria ought to be employed to appoint SC judges? An objective criterion based on assessment of legal acumen, professionalism, financial integrity, impartiality, objectivity and independence, patience, humility and compassion, etc, needs to be devised for SC judges’ appointments.

The vision of an appointee must mirror the said objective criteria so that he/she can deduce the true meaning of law vis-a-vis the political and constitutional plane within which the law operates. Such objective criteria ought to be further complemented by the seniority principle to make it just. Each factor ought to be given a specified allocated score. The division of score needs to be rationalized.

There must be an objective criterion for the appointment of SC judges to avoid any rift among the honourable members of the Judicial Commission of Pakistan. However, till such time the objective criterion is devised, the seniority of judges must be used as a standalone criterion for the appointment of SC judges. It will only help serve as a precaution based on the bitter experiences of the past.

The writer is a lawyer and partner at a law firm based in Islamabad and Peshawar.