July 13, 2021
By Ahmed Saeed
Senior lawyers and bar representatives have decried the practice of appointing junior high court judges to the Supreme Court (SC) and have said that these out-of-turn elevations are sometimes misused to manage and incentivise high court judges in order to get favourable judgments from them.
Senior lawyer and former President Supreme Court Bar Association (SCBA), Hamid Khan, asserted that appointing senior high court Chief Justices to the Supreme Court fulfils the objective criteria.
“Although seniority is not a guarantee for competency, it is a relevantly better standard for promotion,” he added. “Moreover, it discourages favouritism amongst senior apex court judges.”
He alleged that the past few appointments in the SC were made based on favouritism which were the root cause of many problems, and which allowed certain quarters to manage or influence important cases.
Junior judge promotion irks lawyers
The issue came to the limelight once again recently when CJP Gulzar Ahmed nominated a junior judge of the Sindh High Court (SHC), Justice Muhammad Ali Mazhar, as a top court judge.
Justice Mazhar is the fifth on the list of seniority of the SHC.
The CJP’s proposal has irked the PBC and other Bar Associations, who have termed the promotion of a junior judge a complete disregard of past judgments and the principle of seniority. The PBC also observed a nationwide lawyers’ strike against this nomination.
The current Chief Justice of the SHC, Justice Ahmed Ali Sheikh, is the senior-most high court judge in the country. But this is the second time he has been overlooked for an elevation in the SC.
In 2018, the then-CJP Justice Saqib Nisar appointed Justice Muneeb Akhtar, who was fourth on the seniority list, as a Supreme Court judge.
Promoting a junior judge – a new normal?
In the last three appointments of judges in the SC, the rule of seniority was overlooked and junior judges were elevated. In 2019, CJP Justice Asif Khosa elevated to the SC from LHC. Justice Qazi was on the 26th number in the seniority list of LHC.
Justice Khosa also elevated Justice Amin-Ud-Din Khan of the LHC to the SC. He was at the fifth position in seniority.
The incumbent CJ Justice Gulzar has only made one elevation in the SC so far but he also ignored the principle of seniority as his predecessor did. Justice Gulzar elevated Justice Mazahar Ali Akbar Naqvi as a top court judge in 2020. Justice Naqvi was the third senior judge in the LHC at the time of his elevation.
These continuous out of turn promotions and that too from Punjab were severely criticised by the lawyers’ bodies, especially those of smaller provinces. In June 2020, late Justice Waqar Seth, then CJ Peshawar High Court moved SC against the elevation of three Lahore High Court (LHC) judges to the apex court.
However, Justice Seth unexpectedly passed away in November 2020 and since then his petition has not been heard.
“Out of turn promotions encourages grouping”
Salahuddin Ahmed, President of the Sindh High Court Bar Association (SHCBA) dispels the notion that Chief Justice Sheikh is not being elevated to the to court as he is not competent enough to hold that position.
“Justice Sheikh has been the Chief Justice of the Sindh High Court for the last four years, and if there are no doubts as to his competency as Chief Justice, what is the issue in elevating him to the Supreme Court?” Ahmed posited.
He added that there is a perception in the judges of the high courts that only the blue-eyed judges of the high courts will be elevated and this has demotivated the judges.
“Out of turn promotions create bad blood among the judges and subsequently resulted in the grouping of judges. When a judge from a certain group become chief justice, he only promotes the judges of his own group,” Ahmed added.
Ethnic balance in the apex
Amjad Shah, senior lawyer and former chairman PBC said there is a question about the competency of Justice Mazhar but the problem is the other judges who have been overlooked were also equally competent.
“If there is no question on the competency of the judges then the senior-most judge should be elevated,” Shah said.
When asked about the criteria to measure the competency of a judge, Shah said that it is evaluated on the basis of the judgments and opinions of senior bar members who used to appear before them every other day.
He also pointed that ethnic balance should also be maintained in the SC as it represents the federation.
Ahmed also believed that all ethnicities must have representation in the apex court all the time.
“Pakistan is a multi-ethnic nation and we can absolutely ignore these things and all the federal institutions be it military, executive or judiciary, they should consider creating an ethnic balance among their ranks.”
It is worth mentioning here that after the retirement of Justice Faisal Arab in 2020, there has been no Sindhi speaking judge in the top country.
Bar called for parliamentary oversight
The issue of the appointment of judges to the SC is a deep-rooted one and that which has haunted institutional unity on many occasions in the past as well. To settle the issue once and for all, the SC in the Al-Jehad Trust case in 1996 issued directives to follow the principle of seniority in the appointment of apex court judges and Chief Justices of the high courts. However, the verdict was never followed, especially in the last few years.
In the 18th Amendment, the process of the appointment of judges in the high courts and the SC was drastically changed by giving more powers to the Chief Justice and senior judges of the SC in these appointments.
For the appointment of the judges in the SC, the Chief Justice of Pakistan (CJP) proposes a name to a judicial commission comprising of four senior SC judges, a former judge, the Federal Law Minister, the Attorney-General of Pakistan and a representative of the Pakistan Bar Council (PBC).
If the proposed name is approved by the commission, it will be forwarded to an eight-member bi-partisan parliamentary committee on the Appointment of Judges. The committee can only reject the name of the proposed candidate by a three-fourths majority, and the reasons for rejection should also be sent to the commission.
Bar Associations have called for constitutional amendments to increase the role of the parliamentary committee in the appointment process.