Deviation from seniority principle harms judiciary’s independence, argued judge

Published September 16, 2021
A file photo of Justice Sardar Tariq Masood. — Photo courtesy Supreme Court of Pakistan website/File
A file photo of Justice Sardar Tariq Masood. — Photo courtesy Supreme Court of Pakistan website/File

ISLAMABAD: Justice Sardar Tariq Masood, a member of the Judicial Commission of Pakistan (JCP), contended during its Sept 9 meeting that whenever the seniority principle was ignored in appointment of judges, the judiciary’s independence was compromised and its fallout derailed democracy.

During a four-hour-long session of the JCP, which met to consider the elevation of Justice Ayesha Malik of the Lahore High Court (LHC) to the Supreme Court, Justice Sardar Masood opposed her appointment and said it was regrettable that three LHC judges senior to the nominee were ignored without any valid reason, an informed source confided to Dawn on Wednesday.

Justice Masood, who expressed his views before the JCP in writing, observed that there was nothing on record to show that the three judges were found to be not competent for the rest of their tenure as judge of the high court. If one of the three was elevated or appointed to the Supreme Court later, he would become junior to Justice Ayesha Malik.

Justice Masood reminded the commission that under Article 177 of the Constitution, the eligibility for elevation or appointment of a judge to the Supreme Court was five years’ service as judge of a high court and there was no mention that an individual can be promoted or appointed only on the basis of age or gender.

The judge recalled that he had sought information from the JCP secretary about the three LHC judges senior to Justice Ayesha, regretting that some information was given but the material information about their active practice in the high court was withheld.

Justice Masood observed that there was a belief that the presence of a woman on the apex court’s bench would send to the world a soft image of the country, but an image, soft or otherwise, had already gone out when a study, carried out by the World Justice Project Survey, ranked Pakistan 118th, among 128 countries, in terms of civil justice.

Justice Masood said the survey revealed that the Lahore High Court’s senior puisne judge had given more judgements than the nominated woman judge. It was also not known whether the other 24 judges who have completed their five-year tenure as LHC judge had disposed of more cases than Justice Ayesha.

Justice Masood cautioned against taking lightly the reservations registered by bar councils since they reflected the legal fraternity’s collective wisdom.

During the JCP meeting, Justice Masood cited a Supreme Court verdict last year which found a judgement given by Justice Malik to be without any “valid reason, lawful reason or reasonable justification”.

Justice Masood, however, emphasised that he was a strong supporter of women’s empowerment not only in the judiciary but also in other spheres of life.

Justice Dost Muhammad Khan, another member of the judicial commission who opposed the appointment, said competence was a part and parcel of seniority and when a junior judge was elevated, questions were raised on the competence of senior judges.

Al Jihad Trust case

He contended that departure from the 1996 Al Jihad Trust case was not possible and there was no concession for gender in the judgement. The Constitution opposes gender-based discrimination as well, Justice Khan observed.

Some concessions are given to women because they lag far behind men in every walk of life, Justice Khan said.

He recalled that when he was the Peshawar High Court’s (PHC) chief justice, he had appointed two women judges and constituted a two-member bench in which both judges were women.

Referring to Justice Ayesha, Justice Doost stressed that she was likely to become the LHC’s chief justice and after that she could be elevated to the apex court. Justice Khan suggested deferment of the matter for some time.

Law Minister Dr Farogh Naseem argued that the pre-elevation record was vital in the matter of elevation to the high court only, and not the Supreme Court.

Article 25(3) of the Constitution, the minister said, spoke of protecting women, but protection does not mean physical protection alone. “It also means providing opportunity,” the law minister said, reminding that there was no convention that only the most senior high court judge could be promoted to the Supreme Court.

An appointment in the apex court is always seen as a fresh appointment, the minister observed, wondering how seniority could be determined in the appointment of an advocate of the apex court.

Published in Dawn, September 16th, 2021

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