COURTS have come to occupy a distinctively unique place in modern states given their multifarious but quintessential roles not only in the development of jurisprudence and adjudication of disputes but also in determining the questions that have a considerable bearing on such diverse areas as fundamental rights, economic efficiency, environmental protection, treaty enforcement, electoral transparency, and in extreme cases, even resolution of political disputes. Hence, the selection of the superior judiciary has become an arduous if not a highly contentious issue, involving competence, integrity, belief, affiliation, background, etc.

Incidentally, our judiciary is also in the eye of a ‘storm’ generated by the recent elevation of Justice Muhammad Ali Mazhar as a judge of the Supreme Court. Otherwise, a highly competent and popular judge of the Sindh High Court, he is junior to four judges, including the chief justice who happens to be the senior-most among the sitting chief justices of the high courts. It is not the first such appointment though. Our history is replete with instances of senior and deserving judges being deprived of their right to be appointed to their due positions in the higher judiciary.

It started with Justice A.S.M. Akram in 1954 who, despite being the senior-most among the judges of the Federal Court, was bypassed in favour of Justice Muhammad Munir as chief justice of Pakistan. Perhaps our constitutional and democratic journey wouldn’t have seen so many debacles at the hands of the judiciary had Justice Munir not been appointed chief justice. Likewise, had prime minister Zulfiqar Ali Bhutto not bypassed Moulvi Mushtaq who being the senior-most judge was aspiring to be chief justice of the Lahore High Court, he might have met with a better fate. Moulvi Mushtaq headed the five-member bench of the Lahore High Court in 1978 which tried Bhutto for abetting murder and sentenced him to death in a controversial judgement that has never since been followed as precedent.

More recently, two former chief justices of Pakistan also ‘managed’ to induct junior judges into the Supreme Court, leading to rancour and anxiety among the affected judges. In one case, Justice Waqar Ahmed Sethi, then chief justice of the Peshawar High Court, filed a petition challenging the appointment of junior judges, on the principle of seniority cum fitness. The petition abated with his unfortunate death, but junior judges’ appointment continued.

It beggars belief that a senior high court judge is incompetent to serve in the Supreme Court.

This time, however, bars countrywide have come out in full force against the elevation of Justice Mazhar. So, why is there such an uproar against this appointment which is otherwise consistent with our judicial history? And more so when the apex court has already treated the appointment of judges to the Supreme Court as ‘fresh’ inductions to which the principles of seniority and legitimate expectancy are not applicable? There are five possible answers.

First, the right of access to impartial and independent courts is a fundamental right of every citizen. Appointment of persons of high integrity, competence and repute, but strictly in accordance with the given procedure to the higher judiciary, is the sine qua non for judicial independence. Appointing a junior judge in the absence of a valid reason for bypassing senior judges is bound to raise doubts as to the propriety of, if not the motive behind, appointments.

Second, formerly, powerful civil or military rulers would ‘coercively’ seek the appointment of favourite judges for ulterior motives. But now the judiciary is free from the shackles of the executive, thanks to a combination of factors — the 19th Constitutional Amendment, robust jurisprudence, powerful bars, civil society, competitive politics, and a watchful media. Constitutionally, our judiciary is completely self-regulated. It dominates the process of the appointment as well as removal of judges, unlike many other common law countries, including the UK, the US and India, where parliament/Congress retains the power of impeaching judges.

Third, although selection of the higher judiciary is channelled through a collegium consisting of a judicial commission, parliamentary committee and the president, the last word lies with senior members of the judiciary that control the judicial commission and thus enjoy exclusive jurisdiction to ‘evaluate’ the professional capability, performance skills, rectitude and competence of the appointees.

Fourth, even if the judges are appointed to the Supreme Court as fresh inductees, the principles of justice, fairness and reasonableness could not be overlooked. The courts have consistently followed these principles in assessing the legality of initial appointments of public servants.

Finally, strictly speaking, the high court is not subordinate to the Supreme Court, though the apex court’s decision is binding on all other courts but to the extent that it decides a question of law or is based on or enunciates a principle of law. Otherwise, both courts share similar jurisdictions — original, appellate and advisory/referential. In fact, the high court exercises a writ jurisdiction that offers far wider, expeditious and efficacious remedies. Hence, it beggars belief that a senior high court judge is incompetent to serve in the Supreme Court.

There is also an issue of justice for aggrieved judges. A number of fundamental rights are violated when a senior judge is bypassed in favour of a junior judge. First is the violation of his dignity, which is the only fundamental right that is absolute and not subjected to any other law. Moreover, a presumption of honesty, efficiency and integrity remains attached to his person as a judge. Unless the presumption is evidentially rebutted, he cannot be impliedly treated as ‘unfit’ for elevation. Indeed, bypassing a senior judge in favour of a junior one is tantamount to displaying a vote of no-confidence in his competence or character or both. And he is condemned unheard, which is also a violation of the due process of law.

If the induction of a Supreme Court judge is a fresh appointment, then in the absence of any rules, the principles of seniority as laid down in a number of supreme court judgments — Al-Jehad Trust; Malik Asad Ali, Sindh High Court Bar Association—should have been followed. But alas, some traditions are too hard to break, even if they hurt institutions most grievously, if not irretrievably.

The writer is a lawyer and an academic.

shahabusto@hotmail.com

Published in Dawn, July 30th, 2021