August 28th, 2021
By Ahmed Saeed
The Women in Law (WIL) Initiative Pakistan has strongly opposed the demand for strict adherence to the seniority principle in judicial appointments. The demand was unanimously made by the All Pakistan Lawyers Convention held in Karachi on August 21, 2021, which was attended by the senior leadership of all bar councils and bar associations of the country.
The WIL urged the legal fraternity, Bar Councils, Bar Associations and other stakeholders to withdraw the demand for adhering to the seniority principle and to refrain from taking any measures that would render current judicial nominations contentious.
The WIL is a collective of women lawyers that works for the equality of opportunity and connectivity of female lawyers in Pakistan. The body in its statement said that demand would create a dangerous precedent by giving rise to a ‘legitimate expectation’ and entitlement to elevation for judges who are most senior.
“This shall only exacerbate existing inequities, including gender disparity on the bench by perpetuating age-based appointments as opposed to instituting structural reforms to address the problem,” they added.
Earlier this month, Chief Justice of Pakistan Gulzar Ahmed proposed the name of Lahore High Court (LHC) judge Justice Ayesha Malik for the post of a Supreme Court (SC) judge. Justice Malik is fourth in the seniority list of the LHC.
If elevated, Justice Malik will become the first female SC judge in the country’s history. She will also become the Chief Justice after the retirement of Justice Yahya Afridi in January 2030.
However, the Pakistan Bar Council (PBC) and Supreme Court Bar Association of Pakistan (SCBAP) have vowed to stop the elevation of Justice Ayesha Malik, terming it against the principal of seniority as laid down by the apex court in the Al-Jehad Trust case.
However, the WIL in its statement argued that the constitutional scheme of appointments of judges in the Supreme Court makes ‘no reference to seniority.’
“These provisions are supplemented with judicial decisions namely PLD 1996 SC 324 and PLD 2002 SC 939. These establish that while seniority is a consideration for appointment of a Chief Justice of a respective court, it does not appear to apply as a principle for nominations and appointments of all other judges in superior courts,” the statement read.
The WIL also added that the consultative process envisaged in the constitution for the nomination and appointments of superior judges will become redundant and superfluous if the ‘seniority rule’ is applied to judicial appointments to the Supreme Court. It said that the nominations and appointments being made under the current law should not be made controversial.
The statement further suggested that bar councils should play their role in abridging the distance between the bar and the bench.
“The responsibility to promote amity between judges does not rest solely with the Chief Justice and the JCP. It extends to the fraternity as a whole, of which bar councils and associations are an integral part.”
The statement also noted that in light of evolving global standards favouring a merit-based system of judicial appointments, each nomination should be perceived on the judges’ individual strengths as opposed to being ‘over’ or in relation to another judge.
“Unless these outdated and overly rigid concepts are not re-evaluated, it is unlikely that there will be any reforms for a more merit based, transparent and inclusive judicial appointments system,” the WIL provided.