Recent developments have rekindled the conversation around the appointment of apex court Judges. The question has become the talk of the town and has especially consumed our lawyers in the bar rooms. ‘What is the most appropriate way to ensure transparent and undisputed appointments while not compromising the independence of the Judiciary?’ ‘Is the 18th amendment’s procedure the answer or the incumbent Judicial Commission under the 19th amendment sufficient?’ No one is sure. However, the passionate debate and constructive input from various academic circles is a welcoming sign for our chequered democracy. It also shows that people expect nothing short of ‘absolute justice’ from our Supreme Court Judges, even if it relates to their appointment.

The more inclusive and diverse procedure under the 18th amendment was nullified following the 19th amendment. The 19th amendment made the Judicial Commission the only relevant authority in appointing the Supreme Court judges and reducing the Parliamentary committee to a mere rubber stamp. Moreover, it also altered the composition of the Judicial Commission and added two more judges, thus, giving the Judges a 3/4th majority (6 to 9 members instead of 4 to 7) in the Commission. The reasoning behind the 19th amendment was correlated with the ‘constitutional provision underpinning Judicial Independence. Thus, the veto of the parliamentary committee was considered a step in the wrong direction and was done away with. Although the 19th amendment was brought to solve the constitutional debacle, it left many reservations and didn’t prove to solve the impediments to the independence of the Judiciary.

Renewing a procedure similar to the 18th amendment cannot solve the problem either. Such a step can only lead to further increasing judicial activism and the Supreme Court striking down the amendment (slim chances of sending reconsideration this time). So, what is the possible way out? Or is there no way out left? Or has it become another non-negotiable challenge against our struggling system that is better left alone? In the United States of America, it is the sole discretion of the President to appoint the Supreme Court Judges and has been followed for many years successfully. This system was also injected into Pakistan (disregarding the parliamentary background). However, it did not prove to be a success and ended with a rift over the appointment between Prime Minister Benazir Bhutto and President Laghari, with the latter eventually dismissing the former’s government.

Although the complexity of the problem requires deep introspection and consensus from all stakeholders, the simpler and more rational way out is through the principle of seniority. The senior-most Judge (in this case, the Chief Justice of a High court) should be elevated to the Supreme Court. It has already been a set precedent that a senior-most Judge will be appointed as the Chief Justice of the Supreme Court of Pakistan through the Al-Jehad case. Thus, the whole crisis can be averted by replicating the same procedure for the elevation from the High Court to Supreme Court. As Lord Denning said that it is the “Government of Laws, and not of men” it would be more efficient and transparent if, instead of placing the crucial appointment into the hands of men, it is done through set norms and laws.

There have been many instances where the Seniority Principle has been compromised in Pakistan, and it has only led to tainting the judicial history and its independence. Justice (Retd.) Munir was appointed by overriding the set norm of seniority, resulting in the apex court (presided by him) validating the suffocation of democracy twice (Tamizuddin and Dosso Case). Justice Maulvi Mushtaq was ignored similarly, and a junior judge was appointed as the Chief Justice of Lahore High Court in his place. Later, The Martial Law government under Zia-ul-Haq appointed Maulvi Mushtaq as the Chief Justice, and he ended up presiding over the controversial death trial of Mr Bhutto.

A similar course was followed in the appointment of Sajjad Ali Shah as Chief Justice of the Supreme Court by ignoring the seniority principle. Pakistan’s judiciary has always suffered whenever the seniority principle has been ignored. India, which has a similar geopolitical context, has been following the seniority principle in the appointment of Judges. In its leading Judgment Kesavananda Bharati V State of Kerala and many other judgments, the Supreme Court considers the seniority principle the most appropriate and non-controversial way of the appointment of Judges in the Higher courts. The determination of merit and competence is a subjective and vague criterion and has led to many complexities in the past and can lead to more in the future. Thus, the seniority principle could end the ongoing debate on partiality in appointments and further strengthen the independence of the Judiciary.