The elevation of Justice Mohammad Ali Mazhar to the Supreme Court while bypassing four senior judges from the Sindh High Court has created, once again, a heated debate about whether the principle of seniority applies to the elevation of Supreme Court judges. The members of the Judicial Commission of Pakistan and the bar have shown a sharp difference of opinion. This article examines both sides of the debate and suggests a way forward to make the process of elevating judges more transparent.
The principle of seniority in the elevation of Supreme Court judges has been repeatedly ignored in Pakistan. In 1954, Justice A.S.M. Akram was bypassed in favor of Justice Muhammad Munir as chief justice of Pakistan. Justice Aslam Riaz Hussain, superseded seven judges, including Maulvi Mushtaq, when he was elevated as a judge of the Supreme Court in 1978. In April 2018, Justice Muneeb Akhtar, who was fourth on the seniority list of the Sindh High Court, was elevated to the Supreme Court. Justice Waqar Ahmed Sethi was superseded three times in elevation to the Supreme Court by Justice Qazi Muhammad Amin, Justice Aminuddin Khan and Justice Sayyed Mazhar Ali Akbar Naqvi. Saqib Nisar and Asif Saeed Khan Khosa were elevated to the apex court by ignoring the Lahore High Court Chief Justice Khawaja Muhammad Sharif.
Those who support the elevation of Justice Mohammad Ali Mazhar seemingly argue that elevation must be based on the ‘competence’ and ‘uprightness’ of the judges, drawing attention to judicial expertise, reputation, and conduct. They contend that the principle of seniority promotes mediocrity while depriving competent judges of elevation. They essentially rely on the Faqir Khokhar and Supreme Court Bar Association (2002) cases to argue that, as elevation to the Supreme Court is a fresh appointment, even a junior judge can be elevated to the Supreme Court. In any case, they insist that the principles of seniority and legitimate expectation, as addressed in the Al-Jihad Trust (1996) and Asad Ali (1998) cases, are restricted to the appointment of the chief justice of a high court and the Chief Justice of Pakistan.
Some argue that formulating precise rules regarding uprightness might make the process of elevation even more problematic: if a junior judge qualifies for elevation based on such rules, and a senior judge fails to do so, the senior judge would face harassment and possible removal from the court. It is further argued that, if elevation has to be made based on seniority (a mathematical principle) then what is the need for creating the commission or granting discretion to the commission, as a senior judge would be promoted automatically. They appear to argue that an objective criterion is neither possible to frame nor can be adhered to considering the judicial function. To extend this argument, for example, Salman Akram Raja, argues in his article (August 8, The News) that “given that the judicial function is so critically dependent on intangibles like vision and inclination, there can be no perfect process for judicial appointments.”
Feisal Naqvi maintains (August 7, The News), that “the absence of objective criteria is because judicial merit cannot be captured by such criteria.”
On the other side, the proponents of the seniority principle consider that its violation challenges the judgments of the Supreme Court such as Al-Jihad Trust and Asad Ali. According to a White Paper published by the Pakistan Bar Council (PBC) in 2003, the Supreme Court Bar Association judgment, which upheld the appointment of junior judges of the Lahore High Court to the Supreme Court of Pakistan, was passed by a bench under the influence of the executive. The contents of the White Paper have remained unchallenged to date. Given the chequered constitutional history of Pakistan, where the executive has frequently interfered in the independence of the judiciary, they believe that ignoring the seniority principle opens up the judiciary to manipulation.
With the benefit of hindsight, we also know that Justice Munir damaged the constitutional and democratic fabric of the country, and Justice Saqib Nisar impaired constitutionalism and democracy while interfering with the policymaking domain of the executive (violating the constitutional doctrine of separation of powers). Similarly, the elevation of junior judges has not always promoted competence and integrity.
If the judiciary stresses the observance of such universally recognized principles as merit, transparency, and reasonableness in case of executive appointments, how can it ignore them in judicial appointments, which are considered to be rather more sacred as the judiciary is supposed to uphold the rule of law and deliver justice? How can a junior judge be elevated to the Supreme Court superseding senior judges without providing plausible reasons as to why senior judges are superseded? Thus, while disagreeing with Raja and Naqvi, it can be argued that specified guiding rules can help to lend more credibility and transparency to the process of judicial appointments.
As the seniority principle in itself is not enough, in addition to the seniority principle, an objective criterion to assess the merit of judges who may be elevated to the Supreme Court should be framed. It could include, for example, the ratio of judgements upheld or reversed by the apex court. In the absence of such balanced criteria, the current debate regarding judicial appointments in the Supreme Court will persist. In any case, only those who enjoy fine reputation as a judge should be promoted to the Supreme Court of Pakistan.
The writer is an advocate in the Supreme Court of Pakistan. His email is: firstname.lastname@example.org