THIS refers to the report “Judicial Commission of Pakistan’s discretion to appoint SC judges challenged” (Nov 28) about the petition filed by the Sindh High Court Bar Association (SHCBA) for the appointment of Supreme Court judges on the basis of seniority instead of the discretion exercised by the Judicial Commission of Pakistan (JCP).

The SHCBA wants objective criteria based on a fair and transparent process for the appointments. At first glance, these prayers seem to be justified. However, the concept of ‘seniority’ becomes meaningless where the initial appointments are based on ‘discretion’.

As always, the demand by the lawyers for introducing the concept of ‘merit’ in the appointment of judges is missing. The key problem lies in the initial appointment of the judges at the high court and junior levels where merit is completely ignored.

Article 175-A of the Constitution is also silent about merit, which is contradictory to Article 18 guaranteeing the fundamental right to trade and profession. It is on the basis of this fundamental right that even a junior clerk cannot be appointed without advertising the post and conducting competitive tests.

On the other hand, judges at the level of high courts are appointed without conducting competitive examinations through any independent organisation. Various bodies of lawyers have always remained silent on this issue for the obvious reason that those enjoying influence within legal circles aspire for such appointments.

This results in selection and appointment of those lawyers as high court judges who enjoy power and influence in the relevant circles, depriving all others of their fundamental right to compete for the vacant positions. After having suffered one blow after another due to a weak and inefficient system, it is for the parliamentarians and civil society, including the lawyers, to raise voice for the appointment of judges through competitive examinations by public service commissions.

Only then the principle of ‘seniority’ for elevation as a Supreme Court judge will become relevant and effective. So long as the judges at the high court level continue to be appointed regardless of merit, any criteria for elevation to the Supreme Court will not serve the purpose.

Sikander Aqeel Ansari
Islamabad

Published in Dawn, December 9th, 2021

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