PESHAWAR: A petition was filed with the Peshawar High Court on Tuesday seeking it to declare that the high court chief justices, who are the members of the Supreme Judicial Council, will always be given preference for elevation to the Supreme Court.

Petitioner Shahid Orakzai wondered if the Judicial Commission of Pakistan can exclude the two most senior high court chief justices, who are SJC members, during the exercise of filling the Supreme Court vacancies.

He also questioned whether any judge, who is not a high court chief justice, could be preferred by the JCP over the high court chief justices in the SJC.

The petition is related to recent appointment of a judge of Lahore High Court as a Supreme Court judge on the recommendation of the JCP while ignoring the Peshawar and Sindh high court chief justices, who are also SJC members.

The petitioner requested the court to direct the JCP to bring the Supreme Court appointments in conformity with the 1996 judgment in the Al-Jehad Trust case.

Respondents in the petition are the judicial commission through attorney general for Pakistan, government of Pakistan through the law secretary, and Senate secretary.

The petitioner contended that if seniority was the law of the land and should be the top most consideration for appointment in the Supreme Court, the judicial commission was bound to find the most senior judge of all high courts in Pakistan.

He added that no reason whatsoever was given when the country’s president notified a judge of the Lahore High Court as the judge of the Supreme Court who was neither the chief justice of that high court nor a member of the SJC.

The petitioner said primarily, the seniority among the high court judges and their chief justices was determined through the explanation given in Article 209 of the Constitution.

He added that the Constitution had no other provision to compare seniority.

“No judge of any high court in Pakistan can rank above the two chief justices of the high courts, who are members of the Council and Clause 3 of Article 209 clarifies it beyond any doubt,” he said.

The petitioner said the role played by the parliamentary committee in the Supreme Court appointments was not known.

He said members of the parliamentary committee had taken oath to preserve, protect and defend the Constitution but they made no inquiry whatsoever about why the two SJC members were ignored and sidelined.

The petitioner said even if PHC Chief Justice Waqar Ahmad Seth was unfit for elevation to the Supreme Court, the president was bound to name the fifth SJC member for it.

Published in Dawn, April 1st, 2020