LAHORE: Senior lawyers at a debate hosted at the Lahore High Court Bar Association (LHCBA) on Saturday had divergent views on the principle of seniority as a criterion for the elevation of a high court judge to the Supreme Court.
The debate was organised by “Courting the Law”, a legal awareness organisation, in the wake of a proposal to elevate Justice Ayesha A. Malik of the Lahore High Court (LHC) to the Supreme Court. Justice Malik who is on number four in the seniority of the judges in the LHC would become, if elevated, the first woman judge of the SC in the history of Pakistan.
Advocate Salman Akram Raja said the criterion of seniority was not a “principle” but a “device” for the elevation of high court judges to the Supreme Court. He said the apprehensions of the bar regarding the uprightness of the decision makers could be true but elevation to the SC should not be made solely on the basis of seniority.
He urged the bar to engage the Judicial Commission (JC) in consultation to frame its rules and improve its composition as at present, judges are in majority. He regretted that the bar during the time of Justice Iftikhar Mohammad Chaudhry challenged the role of the Parliamentary Committee (PC) in the judges’ appointment given under the 18th amendment.
He said sticking to the so-called principle of seniority only would paralyse the justice system.
Former Supreme Court Bar Association president Hamid Khan said all bar councils and associations had a unanimous view in support of the seniority principle. He said it was not necessary that an argument that suited the system of the United States most would also suit the system in Pakistan.
“We have to make decisions keeping in view the history of our judicial system,” he said.
He noted that every time a junior judge had been elevated to the Supreme Court or made chief justice in the past, the country underwent turmoil. He argued that whenever the principle of seniority was violated, a blue-eyed judge was elevated.
Mr Khan was explaining his point of view when he was interrupted by the moderator who moved on to Advocate Mansoor Awan. Mr Khan stayed on the stage but left the venue after a while apparently in protest.
Mr Khan told Dawn that by interrupting him an impression was given that the debate was organised to propagate a specific narrative in support of certain judges and its opposition was not allowed.
Advocate Awan said the 18th amendment had eliminated the loopholes in the process of the appointment of the judges. However, he said, subsequently the PC had been made toothless.
He called for framing rules of the JC and revisiting the Munir Bhatti judgement which radically curtailed the role of the PC in the appointment of judges.
Awan said the seniority could be one of the aspects for the elevation of judges to the SC but disregarding this aspect needed a criterion and reasons.
Retired Justice Nasira Iqbal said the proportion of the women judges should be at least one third of the total strength of the judges in higher courts. She also referred to unjust treatment meted out to women judges in the past by ignoring their seniority.
LHCBA Secretary Khwaja Mohsin Abbas supported the principle of seniority in the elevation of the judges to the apex court.
Published in Dawn, August 29th, 2021