ISLAMABAD, March 21: Chief justice Sheikh Riaz Ahmad on Thursday observed that it was not the first instance when junior judges from the high court were appointed as judges of the supreme court.

The chief justice presiding over the five-judges bench, hearing petitions challenging the elevation of three judges from LHC to SC, observed that Justice Bashir Jehangiri, who recently retired as Chief Justice of Pakistan, was not a senior judge when he was elevated to supreme court. Similarly, Justice Raja Afrasiab Khan too was not the senior judge at the time of his elevation to SC from LHC.

Hamid Khan, president of SCBA, responded by saying that all the appointments the CJP mentioned were made prior to judges case in 1996 in which the principle of seniority was laid down.

The SCBA president said that it was strange that the principle of seniority was applied on the three high courts, Sindh, Peshawar and Quetta and violations were committed in LHC. He said that when the chief justice of BHC, refused to come to supreme court, he was shown the door.

If the principle of seniority was abandoned, there would be chaos, he contended.

The principle of seniority in the appointment of judges, declared constitutional convention by the apex court, was applicable to all the judges and to the chief justices alone.

He argued there was no difference between a judge and chief justice, except that the CJ had some administrative powers.

Hamid Khan stated that if the principle of seniority was confined only to the appointment of chief justice, the whole endeavour for the independence of judiciary would be defeated.

Junior judges, aspiring to become the chief justices or the judges of the supreme court would try to make contacts in the government for elevation and it would make the whole system topsy-turvy.

Justice Fakeer Khokhar, the SCBA president stated, was 13 on the seniority list at the time of his elevation. If CJ LHC, Justice Falk Sher, who was nine years senior to Justice Khokhar, was appointed judge of SC, he would be junior to him in the SC.

The CJP inquired from SCBA president if the appointment in the supreme court was elevation or fresh appointment.

Hamid Khan replied that it was promotion, unless a lawyer was directly appointed in the supreme court. Superior judiciary, Hamid Khan said, consisted of high courts and supreme court and could not be discriminated in the application of principle of seniority.

Justice Deedar Hussain Shah inquired about the qualification of a judge of the supreme court. Hamid Khan stated that a judge of high court who had five years experience was qualified to be judge of the supreme court.

The petitioners have challenged Justice Khokhar’s appointment as he had not completed the five years experience as judge. Before elevation to SC, he was working as federal law secretary which was essentially an executive post.

Justice Deedar Hussain Shah observed that nowhere it was written in the constitution that only a senior judge from the high court would be appointed judge of the supreme court.

The SCBA president replied that it was also not written in the constitution that a senior-most judge would be chief justice of Pakistan or of high court. It was through interpretation that the supreme court held that the most senior judge would have “legitimate expectancy” to become the chief justice.

Chief Justice Sheik Riaz observed that the convention of appointing senior-most judge as the chief justice was strengthened from the language of the constitution. In it was held that in the absence of the chief justice, the senior-most judge would be the acting chief justice.

Justice Deedar Hussain Shah observed that Justice Falk Sher, being the senior-most judge, was not appointed as chief justice on two occasions.

Hamid Khan replied that reasons were given for his non-appointment and it was made clear that two chief justices of Pakistan had opposed his appointment as chief justice because of his conduct with his colleagues.

While ignoring the judge for elevation, reasons should not only be recorded but also be communicated to the judge. The communication should be widespread and be made public so that the bar and any concerned person was aware of the reasons, Hamid Khan stated.

Justice Qazi Mohammad Farooq observed that the recording of reason was only required when their was disagreement between the constitutional consultees and the executive.

Justice Deedar Hussain Shah observed that while deciding the judges case, the supreme court violated the principle of natural justice that nobody should be condemned unheard. He observed that as a consequence of SC judgment, a number of judges were de-notified but they were not heard by the SC before deciding their fate.

Hamid Khan stated it was unfortunate that judges were condemned unheard. Had Justice Sajjad Ali Shah adopted even- handed approach, he might not have met the fate he met, Hamid Khan said.

Justice Deedar Hussain observed that every action had a reaction. Justice Abdul Hameed Dogar, observed that principle of seniority was not extended to the chief justice when the judges case was announced.

Hamid Khan said it was correct and stated that he had pointed it out in his capacity as vice-president of Pakistan Bar Council.

The chief justice observed that if adverse opinion about a judge was communicated to him or was given wider publicity, it would be embarrassing for the judge. “Don’t you thing that being ignored is also embarrassing,” Hamid Khan posed a question to the bench.

He stated that to the best of his knowledge, 10 judges of the LHC who were superseded, were not informed of the reasons for ignoring them and they were groping in the dark.

The confidence of the public eroded when they knew that even the members of the judiciary were not getting justice.

Hamid Khan was still arguing the case when the court adjourned the proceedings till April 1, 2002.

At the outset of proceedings KMA Samdani rose to inform the court that he had also entered into the arena as counsel of respondent No 5, Justice Mian Nazir Akhtar.