Seniority vs Fitness in the Appointment of Supreme Court Judges

The possible appointment of Justice Ayesha Malik to the Supreme Court of Pakistan by the Judicial Commission, regardless of the principle of seniority, has once again become a reason for debate and discussion in bar rooms, chambers of judges and drawing rooms of politicians.

The trend of out-of-turn appointments to the Supreme Court of Pakistan contradicts our beliefs as constitutional lawyers and not elevating the senior most judge of the High Courts of Pakistan to the Supreme Court often causes confusion among the public and frustration within the legal community.

An earlier debate revolved around the elevation of Justice Muhammad Ali Mazhar, the 5^th most senior judge of the Sindh High Court, followed by another possible appointment of Justice Ayesha Malik, the 4^th most senior judge of the Lahore High Court and the first woman expected to grace the bench of the apex court and adjudicate cases in the highest court of the country.

The possibility of such unconventional elevations shook a lot of people and instilled tensions among the ranks of judges of the High Courts who had legitimate expectancy to be elevated to the Supreme Court of Pakistan. They showed their concern through their mouthpieces such as the Pakistan Bar Council which, despite being a lawyers’ regulatory body, called for a nationwide strike against the elevations and made advocates boycott courts even though lawyers had nothing to do with the matter.

Article 175A of the Constitution clarifies the process of appointment of judges to the apex court of Pakistan and refers to it as an “appointment”. The term “appoint” has been defined by Dictionary.com as “to name or assign to a position, an office, or the like; designate” and NOT promote or elevate. So it is self-explanatory that every person who sits on the bench of the Supreme Court of Pakistan is appointed afresh and can be, as per Article 177 of the Constitution, any judge who has been a judge of a High Court for 5 years or an advocate of the High Court for 15 years.

Even though it had been construed by the Supreme Court itself in Al Jehad Trust vs Federation of Pakistan (PLD 1996 SC 314) and Malik Asad Ali vs Federation of Pakistan (PLD 1998 SC 161) that the seniority of judges would be respected in cases of promotion of judges of High Courts to the Supreme Court of Pakistan, it was shortly stopped from being followed in the presence of clear Articles of the Constitution. It is a settled principle of law that the Constitution takes precedence over ordinary laws and laws are superior to the judicial decisions of even higher courts.

Aggrieved judges, like the late Justice Waqar Ahmed Seth, Chief Justice Peshawar High Court, also filed a representation before the Judicial Commission of Pakistan after being superseded, however, the same was ignored even then, and rightly so, despite having a wrong outlook.

Even law knowing and law practicing persons i.e. the lawyers themselves on an instinct missed clear provisions of law on the subject and called for countrywide protests against the appointment of a judge to the Supreme Court only because “seniority” had been ignored which was never there in the first place.

The Supreme Court acts as a custodian of the Constitution of Pakistan and requires competent and fit individuals to be on the bench to cope with the drastic changes in the legal spheres of Pakistan. Having conventional, slow-paced and fundamentalist judges on the bench has a clear, negative impact on socio-economic progress and the democratic institutions of the country, resisting the waves of change and creating chaos.

The lawmakers had clearly idealized the idea of change when they made a judicial commission comprising a large number of learned and accepted individuals from the bench, the federal cabinet and the legal community. For reference, the relevant Article 175A has been reproduced below:

“Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court

175A.(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of—

(i)  Chief Justice of Pakistan;

(ii)  [four] most senior Judges of the Supreme Court;

(iii)  a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the [four] member Judges, for a term of two years;

(iv)  Federal Minister for Law and Justice;

(v)  Attorney-General for Pakistan; and

(vi)  a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.”

The Constitution, in Article 177, provides the eligibility criteria for the appointment of judges:

“177 (2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and—

(a)  has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b)  has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).”

While the Constitution has clarified the process of appointment and laid down the eligibility criteria for appointees, the beauty of law is that it is a growing organism and has shown two distinct interpretations in the execution of Article 175A of the Constitution. The former Judicial Commission seemed to prefer the seniority of High Court judges for appointments to the Supreme Court while the present Commission seems more concerned about the quality of judges, regardless of seniority.

The concept of seniority-cum-fitness forms an integral part of the service laws of Pakistan and is regularly interpreted by the judges of superior courts. Even though it has no mention within the appointment of judges of the Supreme Court, it may be relevant to those who question the validity of such appointments.

In 2014 PLC(CS) 982, the Peshawar High Court clearly stated that:

• seniority was not a right;
• there was no vested right to be promoted to a specific post; and
• the fitness of a person was to be determined by a competent authority alone, as per set criteria.

The judgment also relied upon other judgments of the august Supreme Court which had lauded and followed the same dicta. Similarly, in the current circumstances involving the appointment of judges to the Supreme Court, the focus is on fitness rather than seniority.

Before protests are announced against the appointment of Justice Ayesha Malik to the Supreme Court by lawyers acting as proxy for the aggrieved judges of the High Courts of Pakistan, it is advised that they take the Constitution out of their shelves, clear the dust and reread the relevant Articles and interpret them as per the literal rule of the interpretation of statutes.

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