WITH no abatement in the furore sparked among the black coats by the seniority criteria in the appointment of Supreme Court judges being ignored, the country’s top lawyer has made a conciliatory move. Attorney General Khalid Jawed Khan has written to the Pakistan Bar Council and the Supreme Court Bar Association seeking input from the legal fraternity on the selection process for the apex court. The AGP in his letter points out that the Constitution is silent on the issue and that the SBCA vs Federation of Pakistan (PLD 2002 SC 939) held that seniority is not a mandatory requirement for such appointments. However, he conceded that “…this judgement has not been universally accepted…”. The aforementioned verdict allowed the controversial promotion to the Supreme Court of Justice Fakhir Mohammed Khokhar who was 13th in seniority at the Lahore High Court and also the sitting federal law secretary in Gen Pervez Musharraf’s regime. It was a judgement that contradicted the seniority principle earlier laid down in the Al Jehad Trust case and the Malik Asad case judgements.
The recent discord between the Judicial Commission of Pakistan and the lawyers’ bodies was prompted by the JCP’s recommendation of Justice Muhammad Ali Mazhar, fifth in terms of seniority on the Sindh High Court bench, for elevation to the Supreme Court. Lawyers across the country went on a daylong strike to register their opposition. When the JCP a few weeks later nominated Justice Ayesha Malik of the Lahore High Court for appointment to the apex court, the PBC again opposed the move on the same grounds — that it would violate the criteria of seniority as the guiding principle in such appointments.
In his letter, the AGP has said he would place the legal fraternity’s input before the JCP at its next meeting on Sept 9 — which coincides with the daylong protest strike called by the SCBA in connection with the issue. It is a welcome move to broaden the consultative process for determining the criteria and include stakeholders beyond the JCP members. The latter should demonstrate good faith by deferring further appointments until the criteria have been settled. Meanwhile, a meeting on Tuesday of the Bipartisan Parliamentary Panel on Appointment of Superior Judiciary Judges held under the chairmanship of Senator Farooq Naek, approved the consideration of seniority as the guiding principle for promotion to the apex court. Some senior lawyers however, contend this was more for the sake of optics than anything else to make up for the PPP senator, also a JCP member, having voted in favour of Justice Mazhar Ali Khan’s appointment to the apex court rather than the Sindhi-speaking Sindh High Court chief justice. It is difficult to deny that merit is the gold standard; however, in a country where nepotism has made cynics of the public, it is essential to devise objective criteria of merit for appointment to the highest court of justice.
Published in Dawn, September 2nd, 2021