ISLAMABAD: The Supreme Court was approached on Thursday with a request to set aside the recent elevation of Justice Aalia Neelum as chief justice of the Lahore High Court (LHC).
Senior members of the Pakistan Bar Council (PBC), Tahir Faraz Abbasi, Munir Ahmed Kakar, Abid Shahid Zuberi, Shahab Sarki, Shafqat Mehmood Chauhan and Chaudhary Ishtiaq Ahmed Khan in their joint petition asked the apex court to declare the July 10, 2024 notification of appointing the LHC’s CJ as violative of the seniority principle, Constitution and constitutional convention, independence of judiciary, fundamental rights enshrined under the Constitution and rule of law.
They also requested the Supreme Court to order the Judicial Commission of Pakistan (JCP) to reconvene its meeting and consider afresh the appointment of the most senior judge as the chief justice.
The petition recalled that the JCP meeting while considering the candidature for the post had held that the legitimate expectancy to be appointed as CJ was not a right and that such legitimate expectancy could be displaced where there was a near universal convergence of negative perception against a particular candidate. However, no concrete evidence was placed on record to substantiate the negative perception or incompetence of other two judges.
PBC members ask SC to declare Justice Aalia’s elevation against seniority principle; want JCP to consider afresh appointment of top judge
The parliamentary committee then confirmed the nomination of Justice Neelum at a time when the post of chief justice of Sindh High Court (SHC) also fell vacant upon the elevation of then-CJ Aqeel Ahmed Abbasi to the Supreme Court.
Upon Justice Abbasi’s elevation, only Justice Shafi Ahmed Siddiqui was considered for the post of SHC’s CJ as he was the most senior member of that high court.
Therefore, propriety demanded that the same principle ought to have been followed for the appointment of LHC’s CJ and names of the second and third senior most judges should not have been even considered, the petition argued.
It contended that the issue at hand was of great public importance under Article 184(3) of the Constitution. Appointments to the judiciary have previously been challenged before the apex court under Article 184(3), primary example being the case of 1996 Al-Jehad Trust.
Any judicial appointments, which are made in violation of the seniority principle, are a threat to the confidence that people dispose in judiciary making the same a matter of great public importance under Article 184 (3), the petition argued.
People need to have faith that judicial appointments are made in accordance with rule of law, meritocracy and fairness and an appointment which is made in violation of the said principles seriously threatens the rule of law, which is the bedrock of the Constitution, the petition said.
Access to justice and independence of judiciary are fundamental rights, as has been repeatedly held by the Supreme Court, the petition recalled, adding that a judicial appointment which lacks transparency and is not made in accordance with principles laid out by the constitution and the SC judgements is a serious threat to access to justice and independence of judiciary.
The superior judiciary is tasked with the job of enforcing fundamental rights and upholding the principles of rule of law and access to justice.
However, if judicial appointments are seen to be based on subjective or arbitrary criteria and not made in an objective and transparent manner, then people of Pakistan will lose all faith and confidence in the judicial system, the petition feared.
Published in Dawn, August 2nd, 2024
