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Independence Of The Judiciary: Who Gets Elevated And Who Is Blocked

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The Honourable Chief Justice of Peshawar High Court (PHC) Mr. Justice Waqar Ahmed Seth has challenged the elevations of three Lahore High Court Justices to the Supreme Court before the apex court, on the basis that they were appointed there in violation of the principle of seniority. The petition challenging the elevation of former LHC judges Justice Qazi Muhammad Amin, Justice Aminuddin Khan and Justice Sayyed Mazahar Ali Akbar Naqvi has been filed by senior counsel Hamid Khan on behalf of Justice Seth.

Mr. Justice Waqar Ahmed Seth was the Chief Judge in the panel of judges of the Special Court which convicted former President Gen Musharraf in the treason case under Article 6 of the Constitution of Pakistan, the only conviction in the history of Pakistan against a (former) military ruler. Justice Seth was elevated to the PHC as an additional judge on the 2nd of August, 2011, and later took oath as Chief Justice of the PHC on the 28th of June, 2018.

Earlier in March, Justice Seth had also approached the Judicial Commission of Pakistan (JCP) over this issue when a justice junior than him had been elevated. “The appointments of judges from the Lahore High Court have been made in violation of the principle of seniority,” Justice Seth contended.

This is not the first time that in Pakistan that elevations have taken place in violation of the ‘principle of seniority’ and the same pattern exists invariably in almost every institution in Pakistan. Such elevations also take place during the appointments of Chiefs of Staffs of Armed Forces. Almost always the most senior contender for the post of the Chief of Army based on seniority is bypassed.

The trend has even taken root in the governance sector where technocrats are now being preferred over the party’s own long-time members. The appointments of Raza Baqir as the Governor of State Bank of Pakistan, Hafeez Sheikh as the Minister of Finance in the Federal Government and that of Shabbar Zaidi as Chairman FBR are a testament to this undeniable fact. Due to this tendency, a hidden manipulation surfaces itself as power struggles ebb and flow. That manipulation is not so destructive to the losers and not that beneficial to the winners either – in the long run. But it causes great ruin to the country. Hence, this tendency of blocking a certain type of judges most definitely undermines the independence of the judiciary as well as the justice system.

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There is no doubt that Justice Waqar Ahmed Seth is being penalised in any possible manner for following the law and rather more for not subjugating to the de facto supreme. Earlier, Justice Munib Akhter had been elevated to the Supreme Court prior to a senior justice Mr. Justice Yahya Afridi who then was the Chief Justice of Peshawar High Court. When criticism from various quarters erupted, the then Chief Justice of Pakistan Mr. Justice Saqib Nisar took the view that the elevation to the Supreme Court is distinct and a fresh appointment rather than an elevation paving the way for future random elevations. Soon after, the next elevation was that of Justice Yahya Afridi and he became junior to Justice Munib Akhter. Having said that, I once had the opportunity to sit in a Double Bench, comprising both Justice Munib Akhter and Justice Yahya Afridi when they were freshly elevated and found them both to be justices of high calibre. Having said that too, although there may be instances where a junior judge may be more competent or desirable for a certain post in the given circumstances, this exercise is harmful to the justice system as well as the administrative system of the country. The case law exists both in favour of principle of seniority and also (in some instances) competence is said to be preferred over seniority.

We may luckily get a high calibre Justice elevated such as Justice Munib Akhter, yet at the same time, brave and daunting justices like Justice Waqar Ahmed Seth can be constrained.

It is not just Justice Seth who is suffering in this long play but all the rest of the High Court judges too. Had Justice Seth been promoted to Supreme Court in his right time, the next-in-line Justice Mr. Qaiser Rasheed would have been the next Chief Justice of Peshawar High Court and the cycle of elevation would have continued in a reasonable manner. But he, too, along with all the deserving judges in line are collateral damage for the movers and shakers. Therefore, in my humble view, hampering the progression of one judge will ultimately also affect the rest.

Ultimately this supposedly justified punishment of keeping strict judges away from the circumference of law, as recently in the case of Justice Qazi Faez Isa and Justice Seth, will only but strengthen these judges individually and the judiciary in its own way. In a way, both these justices are now untouchable. They can only be teased now in the form of references against them or halting their promotions but in essence they have successfully and triumphantly flagged ‘honour’ in their ultimate CVs.

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Justice Seth has started to become the pride of lawyers throughout KP. The risk taken by Justice Seth when he could have easily rescued himself from the Musharraf case by making any reasonable excuse, while he could have chosen to lavishly proceed through to the Supreme court after a splendid career as a lawyer and having the honour to be the Chief Justice of a Provincial Top Court, and while the CV could have had five stars Justice Seth found General Musharraf guilty of High Treason under Article 6 of the Constitution of Pakistan-for suspending the constitution when he imposed a state of emergency in November 2007 — and sentenced him to death. (later overturned by LHC). I am a strong critic of the death penalty due to the imperfectly crafted society we live in, however, since it is in the law I am bound to respect it. But that is not the point here. The point is that the justice system can only possibly acquire equilibrium if it is not tampered with in the manner that this write-up explains.

This week the SC Registrar office returned Justice Seth’s petition after raising certain objections. Now, Justice Seth has challenged the registrar office’s objections through renowned lawyer Hamid Khan.

In my humble opinion, it is unlikely that Justice Seth would be able to nullify the appointments and elevation of judges who have already been promoted, unless the whole regime changes. It is also unlikely that the current regime would allow Justice Seth to be elevated to the SC should any new vacancy arise in the apex court – primarily due to the fact that he dared to convict a military ruler. Under the garb of appointing more competent judges, deserving senior judges will continue to be penalised for their uprightness as has recently been seen in the case of Justice Qazi Faez Esa and Justice Seth.

That day is still far when all the judges in the higher courts would think alike. But the fact that some have started to not only think differently, but also act differently, has started to show light at the end of the tunnel.

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Naya Daur