ISLAMABAD: The Khyber Pakhtunkhwa Bar Council (KPBC) on Monday moved the Supreme Court to ensure that vacancies in the superior judiciary be filled purely on the principles of merit and seniority, saying independence of the judiciary is linked and connected with the appointment of judges.

In its petition moved through Advocate Ghulam Mohyuddin Malik, the KPBC requested the apex court to set aside the elevation of three judges from Punjab to the SC by declaring the decisions taken by the Judicial Commission of Pakistan, the federal government as well as the Parliamentary Committee as illegal under Article 175-A of the Constitution.

The petition pleaded that sitting Peshawar High Court Chief Justice Waqar Ahmed Seth, whose competence and ability had been recognised not only in Pakistan but also abroad, be considered elevation to the Supreme Court on the basis of inter-se seniority and grants all back benefits as permissible under the law.

Justice Waqar was appointed chief justice of the high court on June 28, 2018. He headed the special court that handed down death sentence to former military dictator Pervez Musharraf in the high treason case for suspending the Constitution and clamping a state of emergency on Nov 3, 2007.

Challenges elevation of three judges against principles of merit, seniority; argues PHC chief justice has legitimate expectancy to be appointed

A similar one-page petition was earlier filed by the PHC chief justice who regretted that out-of-turn elevation to the top court would undermine independence of the judiciary. The petitioner judge observed that this would not only create an anarchic situation, with the judiciary giving birth to an unhealthy competition among the high court judges to achieve coveted positions, but would also damage its image in the public.

The KPBC in its plea argued that elevation of Justice Qazi Mohammad Amin, Justice Amin-ud-Din Khan and Justice Syed Mahar Ali Akbar Naqvi to the Supreme Court was made allegedly in violation of the principle of seniority and merit. In view of the constitutional provisions as well as the 1996 Supreme Court Al-Jihad Trust case and 1998 Malik Asad Ali case, the KPBC petition contended that the PHC chief justice had the legitimate expectancy to be appointed as judge of the Supreme Court on the basis of seniority, eligibility and merit.

Surprisingly, the PHC chief justice had been dropped without affording him the opportunity to be heard and thus he had been condemned unheard, the petition regretted.

The KPBC also highlighted how the Sindh Bar Council (SBC) had conveyed its displeasure as well as reservation of the legal community on the three appointments made in the apex court along with the supersession of the PHC chief justice.

The petition contended that all the three judges who had been elevated to the SC were performing their duties under the administrative control of the Lahore High Court (LHC) chief justice and were junior to him. In case the LHC chief justice is elevated to the apex court, he will be junior to these three judges in the apex court and so would be the position of other chief justices of the high courts, the KP bar council argued.

The petition recalled that the PHC chief justice was the Pakistani jurist who had been given the most difficult task of hearing the high treason case against former president Musharraf.

The bar council also recalled how the PHC chief justice had conducted high-profile cases with one of his important judgements whereby 75 convicts of military courts most of whom were awarded death sentences were acquitted for want of evidence and unlawful conviction and sentence.

Published in Dawn, July 28th, 2020