Supreme Court Judges: Seniority Or Merit-Based Appointments?

We have heard and witnessed many debates over the elevation/appointment of judges from the High Courts to the Supreme Court last year. It has birthed two standards for the elevation/appointment of the Supreme Court Judges: Seniority or Merit-based appointments. People with a view and perspective of the seniority principle believe that the most senior judges of the High Courts should be elevated/appointed to the Supreme Court. On the other hand, people with a view and perspective of merit-based appointments believe that judges should be appointed to the Supreme Court on the basis of their credentials, legal acumen, and caliber.

 

For the appointment of Supreme Court Judges, the Chief Justice of the Supreme Court was recommending a panel to the President and the President was selecting a suitable name from the panel before the passage of the 18th amendment in Pakistan. Similarly, for the appointment of High Court Judges, the Chief Justice of the concerned high court was forwarding a panel to the President through the Governor of the concerned province and the Chief Justice of Pakistan. Later on, the Supreme Court entrenched the discretionary powers of the President through a most famous Al-Jihad Trust Case, making the recommended name of the Chief Justices almost binding upon the President. 

 

18th amendment provided a completely new procedure for the appointments of the Supreme Court judges. A Judicial Commission of Pakistan and a Parliamentary Committee were created with the impulsion of the evaluation process. The JCP consisted of the Chief Justice of Pakistan, the four senior-most judges of the Supreme Court, one former Judge of the Supreme Court nominated by the Chair for two years, the Attorney General for Pakistan, the federal Law Minister, and a senior advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council. It is the duty of the Judicial Commission to recommend a name to the Parliamentary Committee which is consisted of eight members, four from the National Assembly and four from the Senate, split equally between the Treasury and Opposition Benches. All names confirmed by the Parliamentary committee were to be forwarded to the President through the Prime Minister for judicial appointment.

 

The constitution of Pakistan does not recommend using the seniority principle process for the elevation/appointment of judges from the High Courts to the Supreme Court. Article 177(2) of the Constitution of Pakistan says that a person may be appointed as a judge of the Supreme Court if he or she has been a judge of a High Court in Pakistan for not less than five years or an advocate of a High Court for not less than 15 years.

Ahmed Shoaib Atta
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