eniority and legitimate expectancy are not mandatory considerations in the appointment of judges to the Supreme Court of Pakistan and the High Courts under the written provisions of the constitution and other laws. The rules provide only for the elevation of ‘competent’ and ‘upright’ judges.

Article 175-A (3) of the constitution speaks of seniority, but only in the context of the appointment of the chief justice of Pakistan. The phrase “most senior” also appears in Article 175 A of the constitution, but it speaks about the composition of the Judicial Commission of Pakistan. The JCP consists of the chief justice of Pakistan, who is its chairman; four senior-most SC judges;a former chief justice or judge of the Supreme Court; the attorney general of Pakistan; the federal law minister; and a nominee of the Pakistan Bar Council. The word ‘seniority’ is not mentioned in the sections of the constitution concerning elevation of judges to the Supreme Court from the High Courts. Neither the written provisions of the constitution nor their judicial interpretation in the PLD 2002 SC 939 judgment necessitate the elevation of the senior most judgesof the High Courts to the apex court. Therefore, junior judges may also be elevated to the Supreme Court as long as they are upright and competent and meet other qualifications.

The eligibility rules for elevation of judges to the apex court are laid down in Articles 177 and 193 of the constitution. The landmark judgement (PLD 2002 SC 939) clearly states that the consideration of seniority and legitimate expectancy do not apply and can be extended to the appointment of judges to the Supreme Court. No constitutional convention or past practice necessitates appointment of the most senior judge of a High Court as a judge of the Supreme Court. The Supreme Court has observed that the scope of the principles of seniority and legitimate expectancy in Al-Jehad Trust and Asad Ali’s cases is limited to the appointment of the chief justice of a High Court and the chief justice of Pakistan.

It is worth mentioning that the Islamabad High Court in WP No. 08 of 2020 Sikandar Hayat Makenvs Federation of Pakistan, etc held that promotion from Grade 21 to Grade 22 has to be made based on merit and not mere seniority. This also applies in the matter of elevation of judges to the Supreme Court. According to a statement issued by Women in Law Pakistan Initiative “at least 41 times, judges have been appointed to the Supreme Court without being the most senior. There is, therefore, no such custom. Seniority is at best a mere demand of some members of the Bars at the moment and has no legal basis.”

A lot has been said and written of late on the promotion of judges to the Supreme Court. There is a view that the nominations ought to be on the basis of seniority until a better criterion is set in the interest of dignity of the institution as well as the judges. The criterion has been attacked on the grounds of ‘competence’, ‘vision’ and ‘spirit’ in the face of a “conveyor belt method” of appointment. The latter view is criticised for ignoring the possibility of discretionary appointments to pressure judges in a precarious political climate. Since neither written provisions of the constitution nor judicial interpretation in the PLD 2002 SC 939 judgement necessitate the elevation of the senior most judges of the High Court to the apex court, junior judges may also be elevated to the Supreme Court if they are upright, competent and have greater merit.

Some members of the Judicial Commission felt that preferring a junior judge to the Sindh High Court chief justice for appointment to the Supreme Court was a violation of merit.

Some members of the Judicial Commission felt recently that preferring a junior judge to the Sindh High Court (SHC) chief justice for appointment to the SC bench was a violation of merit. “Former CJP, Justice Saqib Nisar, had inducted some junior judges in the court, saying that their seniors weren’t interested in becoming Supreme Court judges,” claimed the most senior Supreme Court judge after the chief justice.

Unfortunately for Pakistan, the country has remained under long periods of dictatorial rule. Judges have sometimes been picked based on the interests of the incumbent regimes. Even in the recent past, it was alleged that some judges of the High Court were picked without regard to merit and based on their role in the lawyers’ movement.

The following judges were appointed to the Supreme Court between 2002 and 2010 in violation of the principle of seniority: Justice M Javed Buttar (2004); Justice Tassadduq Hussain Jillani (2004); Justice Chaudhry Ijaz Ahmed (2005); Justice Syed Jamshed Ali (2005); Justice Khilji Arif Hussain (2009); Justice Mian Saqib Nisar (2010); Justice Asif Saeed Khan Khosa (2010). Six such appointments were made from 2011 to 2021: Justice Gulzar Ahmed (2011); Justice Amir Hani Muslim (2011); Justice Munib Akhtar (2018); Justice Amin-ud-Din Khan (2019); Justice Sayyed Mazahar Ali Akbar Naqvi (2020); Justice Muhammad Ali Mazhar (2021); and Justice Ayesha A Malik.

The debate is important. This is not the first time the process of nominations to the superior judiciary has become contentious. Even prior to the 18th Amendment, the question has been raised before SC judges in several cases. Itdoes not appear to have been comfortably settled given the level of interest and controversy the issue generates every time superior court nominations and appointments are announced.

In 2020, fissures started to emerge in the judicial hierarchy after the elevation to the Supreme Court of Justice Sayyed Mazahar Ali Akbar Naqvi, a judge of the Lahore High Court soon after the chief justice of the Peshawar High Court petitioned to the CJP that he, according to the principle of legitimate expectancy, should be recommended for elevation to the Supreme Court on the basis of seniority, suitability and merit. The Supreme Court Bar Association was the first to react to the petition, saying that the elevation of a high court judge to the apex court was always considered a new appointment; the principle of seniority was not necessarily applicable to such a situation; and that similar out of turn elevations to the Supreme Court had been made in the past.

In the recent Supreme Court Bar Association elections, both leading groups had almost similar views in support of the elevation of high court judges to the SC on the basis of the seniority. Recently the federal law minister supported the chief justice’s nomination of some junior judges for appointment to the Supreme Court and then resigned from his office after facing popular backlash. The resignation changed nothing as the ‘damage’ was done. The candidate from the rival group of lawyers was elected as president of the Supreme Court Bar Association and in his victory speech, vowed to resolve disputes regarding the elevation of judges through dialogue.

There is clearly a need to imagine a more comprehensive and satisfactory set of criteria for such appointments.

The writer is an advocate of the High Court and a PhD scholar