Seniority Issue in the Judge’s Case
The elevation of two senior judges of Lahore High Court, Lahore to Supreme Court along with justice F M Khokhar by a prospective notification has rightly sparked a controversy all over the country. The Chief Justice of Pakistan who has lay off the robs of his office on 6th of January, 2002 considered it appropriate pre-empt appointment, against his own vacancy and any other occurring on 9th of January, 2002 by the superannuation of Mr. Justice Muhammad Arif, and has appointed three judges with effect from a future date i.e., 10th of January, 2002 as a judges of Supreme Court.
Prestigious national dailies have made these elevations a point of their editorial commit and leader of the Bar have also criticized this action on the basis of the judgment of 20th of March, 1996, commonly known as “judges case”.
Why it is true that judgment in the judges case lay down a minimum criteria for a gradual build up and strengthening of the independency of judiciary, and free it from administrative stronghold, but it is time to take a fresh look at this judgment and the legal environment it has created after it has been around for nearly six years.
One can start with the implementation of judgment immediately after 20th March by Chief Justice Mr. Justice Sajjad Ali Shah who had himself headed the bench the record shows that in the second week of April, 1996, while the issue of appointment of the Chief Justice of Lahore and Sindh High Court was still inconclusive, pursuing to the judgment of 20th of March, Justice Sajjad Ali Shah was called by the President Farooq Laghari to Awan e Saddar. Without a pre-set agenda he embarked upon the consultative process and obtained “consent of the Chief Justice in the complete deviation and naked disregard of 20th of March judgment for the appointment of Justice Raja Afrasiab Khan from Lahore and Mr. Justice Bashir Jhangiri from Peshawar as well as Mr. Mukhtar Ahmed Junejo from Sindh High Court for appointment as judges of the Supreme Court. All these three judges did not qualify on the test of seniority for their elevation to the Supreme Court.
A unique situation had emerged wherein the Prime Minister who had appointed Justice Sajjad Ali Shah as a chief justice in violation of the Principles of seniority had estranged herself from him for a certain expression of “independency or judicial activism”. President Laghari gave refuge to the beleaguered Chief Justice and therefore, Chief Justice Sajjad Ali Shah had to Sacrifice the Principles enunciated in the judgment at the alter of “a supporting presidency”. It is however, indisputable that the judgment in the judges case did not improve in any remarkable manner, the quality of incumbent judges in any short contrast with those picked up by the political government. In fact the political government succeeded in doing almost the same thing through permanent Chief Justice, much conveniently and comfortably than it was getting done from the adhoc Chief Justices. It is the matter of record that one of the bones of contention between the Chief Justice of Pakistan and the government of Mian Muhammad Nawaz Sharif was the issue of retention of a particular judge as a Chief Justice of Lahore High Court because the Chief Executive of the largest province was feeling difficulty in a running the province without a particular Chief Justice. Most of appointments made after the 20th of March, 1999 were based on a compromise formulae for accommodating nominees of various consultees including those of the political governments. Although the judgment in its overall framework does provide a mechanism, which by strict adherence could strengthen the in situation and provide a framework for the independency of judiciary but practically it contributed towards establishment of an almost pervasive say in the person of the Chief Justice and virtually dictate him to either accept his elevation or quit the job should he disagree, although in violation of article 209.
This is what happened in the case of Governor Ameer ul Mulk Mengal who was dislodged from his office on the pretext of his elevation to the Supreme Court on principle of seniority. Chief Justice Mengal had personal difficulties in accepting the assignment and was therefore, notified as retired, on a legal fiction. The consultative process which has to be consensus oriented and should present the views of the judicial institution headed by the Chief Justice was turned into a personal prerogative of the Chief Justice to the exclusion of the other members of the institution.
Wide criticism on the current elevation has been triggered off for two main reasons (allowing the Chief Justice Mr. Justice Falak Sher to continue his position while ignoring Justice Mian Nazir Akhtar for appointment as the Chief Justice or offering him to accept elevation and secondly, and mainly, for picking up a judge at serial number 13 for elevation to the Supreme Court which of course cannot be countenanced are endorsed. The transparency in exercise of institutional powers raises questions which need a satisfactory answer for the continued confidence of public at large in the institution of judiciary. In Malik Asad’s case 10 judges of the Supreme Court decided to throw out their Chief Justice (Sajjad Ali Shah) four years after his appointment on the ground that violation of principle of seniority frustrates those who are left behind and makes them unhappy as judges. The appointment of Justice Ramday and Justice Abbasi, prima facie, proceeds on Merit but the appointments have been plunged into controversy by joining of a junior judge appearing at serial number 13 which has been given rise to sharp public and in house reaction. The appointment of Justice Khokhar could neither be justified on reasons of competency nor for unusual performance, since most of his illustrious colleagues would equally qualify on such criteria.
The 20th of March, judgment had reinforced the constitutional position for appointment of judges as well as the proper conventions, which need to be practiced. The judgment brought to end;
- Appointment of adhoc judges in the Supreme Court without first exhausting the sanctioned strength.
- It prohibited appointment of acting Chief Justice.
- It declared that acting Chief Justices were not proper consultees for appointment of judges.
- It also mandated that appointment had to be consensus oriented and that all vacancies occurring in the superior courts had to be filled in within 30 days.
In may view except the appointment of permanent Chief Justice, no other declaration made by the Supreme Court has been strictly adhered to any degree. Vacancies remain unfilled much beyond 30 days, and for months together. Appointments made are not consensus oriented, and by adhering to the consultative process strictly. They are based on the compromise sharing formula between the various consultees by accommodating their respective nominees.
The independency of a judge can only be structurally secured by providing adequate safeguards against arbitrary removal or supersession of a judge and providing adequate guarantees which may protect him in exercise of his independent judicial powers. But this structural independency cannot improve upon human content and the conscience which could guard against temptations of mixing up with the executive and making efforts to discover what the executive really want.
With the overall decline of the society, the flood water have reached our institutions including the judiciary and have done a devastating job of eroding and bringing down judiciary, in line with other institutions.
The human content, manning this institution is the most substantial element since it has to serve as the watchdog of the entire society. It was the duty, both of individual manning judiciary and members of the Bar to raise a protective wall against possible erosion brought about by the government are from within. A strong Bar is sine qua nine for a strong and independent judiciary. It is not possible for the judiciary to fall below a minimal standard without a corresponding decline in the strength of the Bar. It the duty of all those who wish this country to survive and resurrect itself to decide and take a definite stand to ward off situations, which a detrimental to the very existence of an autonomous assertive independent judiciary. It is also time for the Supreme Court to take a second look at the judges case and improve upon the weaknesses that have been noticed during the past six years of the implementation of the judgment, by taking stock of various event including that of Chief Justice Mengal. It is hoped that the Supreme Court, in order to protect its existence and respectable survival, will address these issues so that it can maintain the requisite level of confidence in the justice system of Pakistan.