Sindh High Court Bar Association (SHCBA) has decided to challenge the appointment of Supreme Court judges “against violation of seniority principle”.
In this regard, SHCBA President Salahuddin Ahmed and Secretary Omer Soomro will file a constitutional petition under Article 184 (3) of the constitution in the Supreme Court today (Saturday).
One of the petitioners, Salahuddin Ahmed, told The Express Tribune that the petition would be filed in the apex court today (Saturday).
According to the draft of the petition, Supreme Court would be requested to direct the Judicial Commission of Pakistan to invite all relevant stakeholders, including judges, senior lawyers and bar representatives, and members of the parliamentary committee.
In order to make the process “more objective and transparent”, the stakeholders would be asked to make suggestions regarding the process of judicial appointments to the superior courts, “and to conduct such seminars, workshops or consultations as may be necessary in this regard to hear all relevant viewpoints”.
"Direct the Judicial Commission of Pakistan to frame comprehensive and detailed Rules/Guidelines to structure both the process of appointments and criteria and parameters for appointments after considering the various aspects of the matter highlighted in the aforementioned grounds and in light of any further suggestions, directives or framework this Hon’ble Court may deem it appropriate to make/provide,” reads the draft.
The petitioners will pray to the apex court that until a mechanism has been finalised, JCP should be restricted to strict adherence to the seniority principle in the elevation of high court judges to the Supreme Court.
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The petition will also request to strike down Rule 3 of the Judicial Commission of Pakistan Rules 2010, which empowers discretionary power to the Chief Justice of Pakistan to initiate names for the appointment of SC judges.
It has been pointed out that five of the last seven judges elevated to the SC were not the senior-most in their high courts.
During the tenure of Chief Justice Mian Saqib Nisar (as His Lordship then was), Justice Munib Akhtar was elevated to Supreme Court despite being fourth in the seniority hierarchy in the Sindh High Court.
Meanwhile, during the tenure of Chief Justice Asif Saeed Khan Khosa, Justice Qazi Amin Ahmed was elevated to the SC in April, 2019, despite his retirement from the Lahore High Court only a month earlier. He ranked twenty-sixth on the seniority list.
Similarly, Justice Aminuddin Ahmed was only fifth in seniority in LHC prior to his elevation to this court.
Likewise, Justice Mazahir Ali Akbar Naqvi was elevated to the court despite being third in seniority in the Lahore High Court. Most recently, during the tenure of Justice Gulzar Ahmed, the incumbent Chief Justice of Pakistan, Mr Justice Muhammad Ali Mazhar was elevated to this court despite being fifth in seniority in the Sindh High Court.
"This stark departure from the seniority principle — to the extent that deviation has become the new norm and adherence the exception — is a phenomenon that has started from 2018.
Previously, the appointment of junior judges from high courts to the apex court was an exception and even then it was at most the senior judge who would be elevated and that too with the consent of his Chief Justice", says the draft of the petition.