ISLAMABAD: Since Pakistan inception in 1947, as many as 41 judges have been elevated to the Supreme Court bypassing the senior most judges of their respective high courts, it emerged on Sunday.

Twenty-one of them were appointed in 48 years till 1995 whereas the remaining 20 were elevated during the past two and a half decades, a well-placed source confided to Dawn. This indicated the practice of bypassing senior judges of high courts while appointing junior judges to the SC had been going on since the country’s independence, the source said.

He explained that 21 judges superseded their seniors to become judges of the apex court between 1947 and 1995, whereas seven junior judges each were elevated from 1996 to 2001 and from 2002 to 2010, respectively. Similarly, during the past one decade, six judges superseded their seniors to become judges of the apex court, he added. The issue of seniority has once again come under limelight in recent months when judges from different high courts were considered by the Judicial Commission of Pakistan (JCP) for elevation.

On July 28, Justice Mohammad Ali Mazhar was elevated to the apex court from the fifth position on the seniority list of the Sindh High Court and could be seen these days adoring different benches of the apex court. Earlier the chief justice of Balochistan High Court Justice Jamal Khan Mandokhail became a Supreme Court judge.

If appointed, she will be the first woman in Pakistan to reach the top judiciary with a fair chance of becoming CJP

Now elevation of Justice Ayesha A. Malik, who is the fourth on the seniority list of the Lahore High Court (LHC) after assuming office in March 2012, will be considered by the JCP as the commission is scheduled to meet on September 9. LHC Chief Justice Mohammad Ameer Bhatti has already accorded his consent to the JCP, expressing no objection to the elevation of Justice Malik who, if appointed, would be the first woman judge in Pakistan judicial history to reach the top judiciary and even would have a fair chance of becoming the chief justice of Pakistan (CJP) in future. While JCP members had been advocating appointment of women judges in the superior judiciary from time to time, all members of the commission agreed with Attorney General for Pakistan Khalid Jawed Khan during one of its meetings in April that there was a need to make nominations of female judges too.

Later, Justice Qazi Faez Isa in a similar meeting of the JCP held in May expressed the opinion that the commission should encourage presence of female judges in the judiciary while other JCP members supported his opinion.

In the July session of the JCP, Justice Isa and the AGP reiterated their stance that elevation of lady judges in the superior judiciary should be encouraged, the source recalled, adding this showed that JCP members had been unanimous in emphasising the need of female judges in the superior judiciary of Pakistan.

The source privy to these sessions further explained that the constitutional scheme, as enshrined in Article 193(1) of the Constitution, clearly stipulated that chief justice of the Supreme Court or the high court should be the most senior judges of the respective courts but no such restriction had been imposed in the appointment of SC judges. Thus even a junior judge could be elevated to the top court, he emphasised.

He also recalled the 1996 Al-Jehad Trust case verdict that as dictated by the established conventions and practice, the most senior judge of the high court had a legitimate expectancy to be considered for the appointment as the chief justice, otherwise, concrete and valid reasons had to be recorded by the president or the chief executive of the country. In the 2002 Supreme Court Bar Association versus the Federation of Pakistan case, it was held that the scope of the principles of seniority and legitimate expectancy enunciated in earlier cases was restricted to the appointment of the chief justice of the high court and the CJP and these principles neither applied nor could be extended to the appointment of SC judges.

According to the judgement, there exists no constitutional convention or past practice to appoint the most senior judge of the high court as Supreme Court judge. It stated that neither the principle of seniority was applicable as a mandatory rule for the appointment of judges to the apex court nor the rule had attained the status of the convention.

The source also recalled how during its May 7 meeting of the Pakistan Bar Council (PBC) one of its senior members and now Senator Azam Nazeer Tarar argued that only seniority was not enough for elevation to the SC and that the aspect of competency and uprightness could not be compromised, as the apex court being the last court of appeal needed competent and upright individuals.

As a matter of principle, only the best of the high court judges should be appointed as judges of the apex court and that too on the basis of competence, integrity performance, ability and not necessarily seniority.

Mr Tarar stated that such appointment was not promotion and secondly the SC being final court of appeal, its decisions needed to be well reasoned with utmost ability especially while exercising its powers under Article 184(3) of the Constitution. He also said the SC was not a dumping court for appointing incompetent judges on the basis of seniority and that the PBC had already recommended that only the competent judges should be appointed to the SC.

Consequently, after thorough consideration and deliberations, the PBC reiterated its earlier decision and the views of Mr Tarar were endorsed and approved by the council.

The source, however, explained that the appointment of a junior judge as judge of the Supreme Court did not preclude the appointment of by-passed senior judge in future. There had been numerous examples, in the past, when a senior judge, after being bypassed in the first instance, was appointed as judge of the apex court subsequently, he said. The source contended that all the three judges, senior to Justice Ayesha A. Malik, have minimum of three years of service and a fair chance of being appointed as judge of the apex court in future besides attaining the position of LHC chief justice.

Published in Dawn, September 6th, 2021