The elevation of judges to the apex court has stirred debate for some time now. It has birthed two opposing standards for elevation: seniority and competence. Adherents of the former believe that the senior-most judge of the High Court should be elevated to the Supreme Court, whereas those who stand by the latter believe that the most competent of those eligible should be elevated.
The evaluation process consists of two bodies, the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee on Judges’ Appointment. The JCP consists of the Chief Justice of Pakistan, the four senior-most judges of the Supreme Court, one former Judge of the Supreme Court nominated by the Chair for two years, the Attorney General for Pakistan, the federal Law Minister and a senior advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council.
Similarly, the relevant Parliamentary Committee consists of eight members with equal representation from the Treasury and Opposition benches. The JCP recommends a name to the Committee to be appointed as a judge of the Supreme Court. The Committee then confirms the suggested name and forwards the recommendation to the President of Pakistan. However, by exercising its (somewhat) limited powers, the Committee may choose not to approve the nomination by a three-fourth majority for reasons which are to be recorded.
According to Article 177(2) of the Constitution of Pakistan, a person may be appointed as a judge of the Supreme Court if he or she has been:
- (a) a judge of a High Court in Pakistan for not less than five years; or
- (b) an advocate of a High Court for not less than 15 years.
The Constitution does not recommend using the principle of seniority when appointing a Supreme Court judge. Therefore, the JCP has the authority to recommend anyone who satisfies either of the aforementioned conditions.
The case of Al-Jehad Trust (PLD 1996 SC 34) has elucidated the matter. The bench led by then Chief Justice, Sajjad Ali Shah decided that the most senior judge of a High Court had a legitimate expectancy to be considered for appointment as the court’s Chief Justice. However, the verdict did not apply the principles of seniority and legitimate expectancy to an appointment to the Supreme Court.
In Supreme Court Bar Association v The Federation of Pakistan (PLD 2002 SC 939), the question of applying these principles to Supreme Court elevations was further clarified in the following words:
“…the scope the principles of seniority and legitimate expectancy in those (such) cases is restricted to the appointment of the Chief Justice of a High Court, and the Chief justice of Pakistan, and these principles neither apply nor can be extended to the appointment of Judges of the Supreme Court.”
The principle of seniority concerning the appointment of a Supreme Court judge has neither been imposed by the Constitution nor by judicial interpretation. The JCP exercises powers granted to it by Article 175A and 177(2) of the Constitution. The only way seniority as a principle can be established is through a Constitutional Amendment. However, this will not be beneficial for the legal institution.
Supreme Court judges are expected to have the best legal intellect in the country. In this regard, he former President of the Islamabad High Court Bar Association and member of Punjab Bar Council, Syed Nayyab Hassan Gardezi has stated that,
“The Supreme Court deserves only the most brilliant legal minds. The principle of seniority on its own would be detrimental for the institution. Despite not satisfying the principle of seniority, recently appointed Supreme Court judges, primarily Justice Mazhiar Ali Akbar, Justice Qazi Amin and Justice Muneeb Akhter have been an incomparable addition to the apex court.”
He has further stressed that,
“Many … judges, like the former Islamabad High Court Chief Justice Anwar Kasi, owing to the principle of incompetence, have not been elevated to the Supreme Court.”
Former JCP member, Dr Khalid Ranjha has said that,
“Historically, we have failed our legal institutions with regard to transparent appointments. Incompetent judges have been appointed and elevated by those in power to satisfy their vendettas. This practice was commonplace during military rule. Justice Aslam Riaz and Faqir Muhammad Khokhar are prime examples… The principle of seniority suits mediocracy. It was only introduced as a safeguard to stop erratic appointments.”
With a focus on competence over seniority, for the first time in Pakistan’s seventy-four year history, a female judge, Justice Ayesha Malik, has been recommended for appointment to the Supreme Court. Embracing the principle of seniority and plummeting the influence of the JCP may introduce certain predictability but will impair the institution. The idea should be to create a process that would not only be transparent but would also guarantee the appointment of the most proficient legal minds.
One way to achieve this would be to diversify and reduce the dominance of Supreme Court judges in the JCP. Members of the JCP should represent diverse walks of life. Some criteria should be established to evaluate the shortlisted candidates. The Commission may also consult senior politicians and judges across Pakistan before forwarding its final report.
Moreover, where a junior judge is appointed to the Supreme Court, an extremely critical question arises: if someone is not competent enough to be appointed to the Supreme Court, are they competent enough to remain a judge of the High Court?
“Quis custodiet ipsos custodes (who will guard the guards)”?
– Decimus Juvenalis
A mechanism to ensure consistency in the competence of High Court judges is also essential. One suggestion is to replicate the army’s unwritten law of supersession; if a judge is superseded, he or she should retire. However, this will have its own complications, especially when a lower ranking judge is elevated to the Supreme Court.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.