LAHORE – A five-judge bench of the Supreme Court, headed by Justice Arif Khilji, is scheduled to take up today (Monday) a constitutional petition regarding the seniority of the High Court judges.

The petition has been filed by Advocate Nadeem Ahmed with the Federation through secretary, ministry of law, as respondent.

Senior Advocate Akram Sheikh, who is representing the petitioner says as per the judgments of the apex court the principle of seniority is applicable within the Supreme Court and within the High Courts, but not with regard to elevation from high courts to the Supreme Court as the apex court is treated as a separate forum.  

Citing Sub-clause 3 of Article 175A, he said: “Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior judge of the Supreme Court as the Chief Justice of Pakistan’, strangely, there is no similar provision with regard to the Chief Justices of High Courts”.  Proviso to sub-clause (5) indicates that appointments of Chief Justices of High Courts will also have to go through the same procedure as the one required for induction of a judge into a High Court. 

The counsel says it is thus not clear whether Article 175A has overruled the principle of seniority with respect to Chief Justices of High Courts, or has it not been overruled but been left to the Judicial Commission and the Parliamentary Committee to themselves apply this principle? If the principle of seniority is still applicable to High Courts, why is it that the senior most judge of a High Court is not automatically to be appointed Chief Justice of that High Court?

And if induction of Chief Justice of High Courts has been left to the discretion of the Judicial Commission and the Parliamentary Committee, can these two bodies appoint a junior judge as Chief Justice of a High Court? On the other hand, if the principle of seniority is still applicable to High Courts and if the Judicial Commission and the Parliamentary Committee may not depart from the principle of seniority then why did Article 175A simply not provide for automatic appointment of a senior most judge of High Court as its Chief Justice exactly as it has provided in case of Chief Justice of Pakistan in sub-clause (3).

And if the seniority principle is no longer applicable to High Courts, then Judicial Commission and the Parliamentary Committee are entitled to appoint any junior judge as Chief Justice of a High Court. And if this is the case, then these Committees can also induct a new judge in the High Court and immediately appoint him as Chief Justice of that High Court as well, superseding all other existing judges of that High Court. Was this the intention of the Constitutional Committee: to give power to the executive and legislature to choose virtually any lawyer or a judge of a lower court and directly appoint him or her as Chief Justice of a High Court?

From the cavalier and non-serious manner in which the whole Article 175A has been drafted and the haste in which it has been adopted, in most likelihood this omission seems to be just another instance of a mere drafting oversight, with obviously very serious consequences.