A CONTROVERSY roiling the legal fraternity for a few weeks has come to a head. It was precipitated by the Judicial Commission of Pakistan’s approval, by a 5-4 majority vote, of the elevation to the Supreme Court of Justice Muhammad Ali Mazhar. The judge was fifth on the seniority list of the Sindh High Court and the decision has been met with a strong reaction from lawyers’ bodies across the country who contend that the JCP is violating the criteria of seniority as the guiding principle for elevation. That criterion was set by the apex court itself through its judgements, notwithstanding that the court has also held that elevation to the Supreme Court be considered a new appointment. On a call by the Pakistan Bar Council, lawyers across the country boycotted the courts on Wednesday. It does not appear that matters are going to settle down soon. The PBC has called a general body meeting of all provincial bar councils and associations on Aug 5 to chalk out a future line of action.

Several rulings of the apex court have expounded on the constitutional provisions related to the appointment of judges to the superior judiciary. The most exhaustive of these were the Al-Jehad Trust case and the Malik Asad case judgements that laid down the seniority principle to be followed in such appointments. In recent years, however, seniority has been disregarded several times. One of the judges who was superseded was the late chief justice of Peshawar High Court Waqar Seth, who headed the special court that found Gen Pervez Musharraf guilty of treason. Justice Seth had even filed a petition to say that in view of his seniority, he had a valid expectation to be elevated to the apex court.

Certainly, seniority as a criterion for promotion in any sphere is problematic. Merit-based appointments are the gold standard. However, Pakistan also has a history of machinations by the executive against the judiciary, including the way chief justices Sajjad Ali Shah, Saeeduzzaman Siddiqui and Iftikhar Chaudhry were removed, not to mention the recent reference against Justice Qazi Faez Isa. In such an environment, the process whereby such an appointment is made must also be transparent. If seniority is to be discarded as the guiding principle, then objective criteria to assess merit must be framed. These could include, for example, the disposal rate, number of judgements published in law journals, the ratio of judgements upheld/reversed by the apex court, the frequency with which their judgements are cited by other judges, etc. It is also worth pointing out that in recent years, the judiciary has set aside hundreds of out-of-turn appointments in the police and the civil sector, presumably on the grounds that bias of some sort could have been involved. Judicial appointments should not become controversial. The JCP must set a clearly defined path to elevation.

Published in Dawn, July 30th, 2021

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