ISLAMABAD: The Supreme Court has observed that the president and the chief justices of high courts cannot determine seniority of judges without objective criterion.

“Leaving the question of seniority to be decided by the president or by the chief justice of a high court without reference to any objective criterion may raise issues of judicial independence which is mandated under the Constitution and is essential in a democracy,” a five-judge bench headed by Chief Justice Tassaduq Hussain Jillani said on Wednesday in a detailed judgement on a petition about seniority of judges of the Lahore High Court.

The judgement authored by the chief justice said the question of seniority of high court judges had been raised off and on either on the administrative side in the respective high courts or through representations addressed to the president. “Such issues though important for the judges concerned, yet have a potential to cause some ripple in the comity of judges and it is imperative that those be resolved in the light of some objective criterion to be laid down by this court,” it added.

The verdict said: “Judicial independence of both the individual judge and the judiciary as an institution is essential so that those who bring their cases before the judges and the public in general have confidence that their cases will be decided justly and in accordance with law.

“Judicial independence is one of the foundational values of the Constitution which is based on trichotomy of powers in which the functions of each organ of the state have been constitutionally delineated.

“The qualification for a person to be appointed as additional judge is the same as for the appointment of a regular judge. As defined under Article 260(1)(c) of the Constitution, a ‘judge’ in relation to a high court includes the chief justice of the court and also a person who is an additional judge of the court. A similar oath is prescribed for both the offices in terms of Article 194 of the Constitution and both are deemed to have entered upon the office on the day on which they make the oath (Article 255(3).

“Thus when an additional judge enters upon the office having taken oath in terms of Article 194 of the Constitution and is later appointed as a judge (under Article 193), his service in the office continues. There is no break in service and the period spent as additional judge has to be counted towards his seniority while computing the period of service of a permanent judge in the high court.

“This is also evident from Article 177(2) under which a person shall not be a judge of the Supreme Court unless he has for a period of, or for periods aggregating, not less than five years, been a judge of the high court, which shows that both the periods as additional judge and judge have to be counted.

“The seniority of judges of a high court shall reckon from the order and date of their appointment as additional judges of that court and the seniority of those appointed on the same date under the same order from their seniority in age.”

Published in Dawn, June 5th, 2014