ISLAMABAD, April 1: Justice Deedar Hussain Shah, a member of the Supreme Court’s special bench hearing constitutional petitions, challenging recent appointments to the apex court, on Monday observed that it was unfortunate part of our history that the appointment of Justice Sajjad Ali Shah as chief justice of Pakistan had been de-notified.

The appointment was de-notified on the recommendation of a bench headed by Justice Saiduzzaman Siddiqui which had held that Justice Shah’s appointment was unconstitutional as principle of seniority had been violated by the government.

Justice Abdul Hameed Dogar, another member of the bench, observed that in Al Jehad case, commonly known as the Judges Case, it was not held that only the senior most judge of the Supreme Court was qualified to be the chief justice of the country.

Chief Justice Sheikh Riaz Ahmad observed that Justice Ajmal Mian had discussed the issue of the appointment of the senior most judge as the chief justice, but no finding was given since the appointment of Justice Shah had been challenged in the Peshawar High Court.

Advocate Hamid Khan, who represented the Supreme Court Bar Association, said that if all the issues had been decided in the Judges Case, the controversy in which Justice Shah had to leave the court, might have been avoided.

Lessons from history must be learnt, he said and added that policy of “pick and choose” was creating a perception in the public mind that the government was interested in appointing only “pliant and pliable” judges.

The counsel argued that if any judge was superseded he must be communicated the reason for that. When inquired by Justice Hussain whether there was any precedent in which reasons for ignoring a judge were communicated to him, Hamid Khan replied that a start had to be made and added that making the judges aggrieved was not in the interest of anybody.

The CJ expressed surprise when the counsel stated that executive was required to communicate the reason to the superseded judge. Executive, the counsel said, made the appointments on the recommendation of the CJ.

He said that if the public perception was cemented that judges themselves were not sure of getting justice, it would be disastrous for the judicial system.

One consequence of ignoring the principle of seniority, he argued, was that a judge once ignored could not be considered for elevation. And if he was elevated on some later date, it would give birth to an anomalous situation as he would be junior to those judges who were junior to him in the high court.

The counsel further said that the pick-and-choose policy would make the seniority list redundant. The judges would feel that a judge with right connections could be picked from number 13, and asked what was the use of maintaining a seniority list.

Justice Hussain observed that soon after the Judges Case, junior judges were elevated to the Supreme Court, which, he said, was the first violation.

The counsel said that “colossal” deviation occurred on Dec 26, 2001 when a judge, who was at number 13 on the seniority list, was elevated to the Supreme Court.

Justice Hussain observed that appointment of additional judges in the high courts was also violative of the Judges Case.

Hamid Khan argued that retention of the chief justice of a high court had also damaged the reputation of the institution. He said that discriminatory attitude was applied while dealing with the chief justices of high courts. When a chief justice of the Balochistan High Court desired to stay he was “deemed” to have retired, but when the same desire was expressed by a chief justice of the Lahore High Court, he was not treated the way Justice Amirul Mulk Mengal had been treated.