ISLAMABAD: Fissures have started to emerge in the judicial hierarchy after the recent elevation to the Supreme Court as Chief Justice of the Peshawar High Court (PHC) Waqar Ahmed Seth has sent a complaint to Chief Justice of Pakis­tan (CJP) Gulzar Ahmed, who is also chairman of the Judicial Commission of Pakistan (JCP).

In a one-page petition to the CJP, Justice Seth warned that the out-of-turn elevations to the Supreme Court would undermine independence of the judiciary, create an anarchic situation within the judiciary by giving birth to an unhealthy competition amongst judges of the high court to achieve coveted positions and also damage the judiciary’s image in the public.

On Dec 17, 2019, the PHC CJ while heading a special court had handed down death sentence to former president retired Gen Pervez Musharraf in the high treason case for imposing emergency in the country on Nov 3, 2007.

On March 16 this year, the CJP administered the oath of office to Justice Sayyed Mazahar Ali Akbar Naqvi, a senior judge of the Lahore High Court (LHC), to fill the coveted office of the Supreme Court judge that had fallen vacant after retirement of former chief justice Asif Saeed Khosa. Earlier, the name of Justice Naqvi was finalised by the JCP in its meeting held on March 4.

It ill behoves a judge of superior judiciary to create such a controversy, says SCBA chief

But soon after the appointment, the PHC chief justice petitioned to the CJP with a request that he being the legitimate expectancy should be recommended for the appointment as a judge of the Supreme Court on the basis of his seniority, suitability and merit.

Supreme Court Bar Association (SCBA) president Syed Qalbe Hassan was the first to react to the petition by Chief Justice Seth as he said that it ill behoved a judge of the superior judiciary to bring into fore such a controversy.

The SCBA president said the elevation of a high court judge to the apex court was always considered to be a new appointment and the principle of seniority was not applicable to such a situation.

Moreover, similar out-of-turn elevations to the Supreme Court had been made in the recent past when junior judges were appointed, he said and emphasised that if the principle of seniority had to be adhered as demanded by the PHC CJ in his letter, then Chief Justice of the Sindh High Court Ahmed Ali M. Shaikh was the senior most judge amongst the judges of the superior judiciary.

Besides, Justice Naqvi was appointed a judge of the Lahore High Court on Feb 19, 2010, Mr Hassan said.

During the March 4 meeting of the JCP, it was highlighted that a judge from the Islamabad High Court (IHC) should have been elevated since the apex court had no representation from the IHC. Moreover the provincial representation of the judges of the apex court is seven from Punjab, five from Sindh, two from Khyber Pakhtunkhwa and one from Balochistan, but none from the IHC.

The last judge elevated to the Supreme Court from Balochistan was five and a half years ago while from Sindh and KP about two years ago, the JCP was informed.

In his petition, Chief Justice Seth has highlighted that he was elevated to the PHC as an additional judge on Aug 2, 2011 and later took oath as chief justice of the PHC on June 28, 2018.

In view of the relevant provisions of the constitution and well-established constitutional convention/practice as well as the law laid down by the apex court in the 1996 Al-Jehad Trust and the 1998 Malik Asad Ali cases, the petitioner has the legitimate expectancy to be appointed as judge of the Supreme Court on the basis of his seniority, suitability and merit, the letter argues.

But he (PHC CJ) has been ignored and superseded thrice without affording him an opportunity of being heard, the letter says, adding that the appointments of judges from the LHC has been made in violation of the principle of seniority.

The petition says that he being a superseded judge has been disqualified from elevation in future and even if elevated, he will rank junior in the Supreme Court to the junior judges who have superseded him.

Published in Dawn, March 20th, 2020