The principles of seniority and merit for the elevation of Judges of the Supreme Court of Pakistan, have their merits and challenges, and the optimal solution may lie in finding a balanced approach that values both experience and capability. The debate between merit and seniority came to prominence during the case of Al-Jehad Trust v. Federation of Pakistan in 1996. At the heart of this debate are two primary principles: merit and seniority. Each principle carries its own implications for judicial independence, effectiveness, and public perception.
The merit principle advocates that judicial appointments should be based on the qualifications, skills, and professional accomplishments of candidates. Proponents argue that this approach ensures that the most competent individuals ascend to the highest echelons of the judiciary. Certain landmark decisions reflect upon the qualities of a Judge which uphold this principle of merit. In the case titled Justice Qazi Faez Isa versus The President of Pakistan and others reported as PLD 2021 SC 1, a ten-member large bench of the Supreme Court of Pakistan while dilating upon the role of Judges was pleased to hold that “Judges exercise pre-eminent authority under the law. They adjudicate disputes between the litigants, hold parties appearing before them accountable and impose liabilities and grant relief to such parties. With their authority comes an even greater responsibility to decide cases fairly, independently and in accordance with law”.
A justice is to preserve the sanctity of his office via his conduct in both his private and professional life. Another arm of the merit principle is the high principle set by a judge’s judgment. He/she must have a strong realisation that the margin of error for his judgments is minimal. Reiterating this Mr. Justice Mian Gul Hassan Aurangzeb while presiding over the certificate awarding ceremony on 23rd January 2016 on “Criminal Trial and Appreciation of Evidence” noted that the Judgments should become a symbol of justice in the society. Similarly, amongst the other qualities of a judge, for him to stand the grounds of the principle of merit, is his ability to be an agile learner who’s capable to adapting to fast changing circumstances. Further In the case titled Mian Irfan Bashir PLD 2021 SC 571 Justice Mansoor Ali Shah was pleased to hold that a judge is to remain within the bounds of the law and Constitution, showing that preservation of their oath at all costs is also what makes a judge stand firm on the principles of merit set out for him.
The old age maxim of equity ‘Ignorantia Juris Non Excusat’ or Ignorance of law is no excuse as the law is knowable, reflects upon the need for judges to know the law on the sleeves of their robes. Good application of law and a legal acumen are credentials which distinguish one Judge from the rest when it comes to Judicial appointments based on merit. In Government of K.P.K through Secretary Home 2017 this principle was reaffirmed. Mr. Justice (r) Dost Muhammad Khan was pleased to hold that it is the duty of the judges to apply the correct law to the facts of the case. The competence and calibre of a judge can be determined/judged based on what he writes, how he writes i.e. his judgments. Mr Justice Umar Ata Bandial mentioned in his address that judges serve the nation through their judgments and that the greatest virtue of an adjudicator is uprightness which leads him to pass just decisions.
The merit principle enhances judicial competence. By prioritizing qualifications and achievements, the merit principle aims to place the most capable judges on the Supreme Court. This can potentially improve the quality of judicial decisions and legal interpretations. Further, Merit-based promotions may encourage judges to excel in their roles, knowing that their advancements are based on their performance rather than merely their tenure. The merit principle also promotes an objective evaluation process, reducing the influence of subjective factors in judicial appointments. However, determining merit can be subjective, as it involves assessing qualitative factors such as judicial philosophy and previous rulings, which may be open to interpretation. Also, the merit-based system may lead to favouritism if not managed transparently, as influential figures may sway decisions based on personal biases.
On the other hand, the seniority principle asserts that judicial appointments should be based on the length of service. According to this principle, the most senior judge is elevated to the Supreme Court, reflecting a respect for experience and seniority within the judicial hierarchy. Constitutional Petition No. 1 of 2000 (2000) is the case which reinforced this principle. The Supreme Court clarified that seniority should be a primary consideration for the elevation of judges to the Supreme Court, reflecting the established practice within the judiciary. Seniority-based promotions provide a clear and predictable path for career progression, which can contribute to stability within the judiciary.
This above-mentioned principle acknowledges the value of experience gained through years of service, potentially ensuring that those who have dedicated significant time to the judiciary are rewarded. Furthermore, Seniority offers a clear, objective criterion for promotions, reducing the potential for personal biases to influence decisions. However, this principle is not without its challenges. Relying solely on seniority can lead to stagnation if less experienced but more capable candidates are overlooked. This may inhibit the introduction of fresh perspectives into the judiciary. When promotions are based strictly on tenure, it might reduce the incentive for judges to strive for excellence and continuous improvement.
In Pakistan, the debate over merit vs. seniority in the elevation of Supreme Court judges is particularly contentious. The judiciary, a crucial institution in Pakistan’s democratic setup, often finds itself at the center of this debate. Advocates for merit-based elevation argue that the increasing complexity of legal issues requires highly skilled judges. They contend that promoting based on merit ensures that only those with exceptional legal acumen and judicial temperament reach the highest court. Additionally, merit-based systems are seen as aligning with international best practices, promoting a more dynamic and responsive judiciary.
On the other hand, defenders of the seniority principle stress the importance of respecting the hierarchical structure and ensuring that judges who have dedicated their careers to the judiciary are recognized. They argue that seniority reflects a long-standing commitment to judicial service and provides a clear, unbiased mechanism for promotions. Naseer Ahmed Baloch v. Federation of Pakistan (2010) is the case which involved the issue of judicial appointments and seniority. The Supreme Court upheld the principle of seniority, reiterating that while merit could play a role, the seniority of judges was a key factor in determining appointments to the higher judiciary.
In the landmark Al-Jehad judgment the Supreme Court of Pakistan was asked to decide on the criteria for appointing judges to the Supreme Court. The primary issue was whether appointments should be based on seniority or merit. The case highlighted tensions between the principle of seniority, which traditionally favoured the most senior judges for promotion, and merit-based considerations, which would allow for potentially more qualified candidates to be appointed regardless of their seniority. The Court, in its ruling, emphasized the importance of merit in the appointment process, arguing that while seniority is a significant factor, it should not be the sole criterion. This case was pivotal in shaping the discourse around judicial appointments in Pakistan and the balance between merit and seniority in the selection of judges.
A hybrid approach is proposed, combining elements of both merit and seniority. Such a system might involve a merit-based assessment to determine the qualifications of candidates, with seniority serving as a tiebreaker or a supplementary criterion. This approach aims to balance respect for experience with the need for competence and dynamism. The merit vs. seniority debate in the elevation of Supreme Court judges in Pakistan reflects broader questions about the best way to ensure judicial excellence and fairness. As Pakistan continues to navigate this debate, the focus should remain on strengthening the judiciary’s role as an independent and effective arbiter of justice, essential for the country’s democratic health and legal integrity.
Merit vs Seniority Principle
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The principles of seniority and merit for the elevation of Judges of the Supreme Court of Pakistan, have their merits and challenges, and the optimal solution may lie in finding a balanced approach that values both experience and capability. The debate between merit and seniority came to prominence during the case of Al-Jehad Trust v. Federation of Pakistan in 1996. At the heart of this debate are two primary principles: merit and seniority. Each principle carries its own implications for judicial independence, effectiveness, and public perception.
The merit principle advocates that judicial appointments should be based on the qualifications, skills, and professional accomplishments of candidates. Proponents argue that this approach ensures that the most competent individuals ascend to the highest echelons of the judiciary. Certain landmark decisions reflect upon the qualities of a Judge which uphold this principle of merit. In the case titled Justice Qazi Faez Isa versus The President of Pakistan and others reported as PLD 2021 SC 1, a ten-member large bench of the Supreme Court of Pakistan while dilating upon the role of Judges was pleased to hold that “Judges exercise pre-eminent authority under the law. They adjudicate disputes between the litigants, hold parties appearing before them accountable and impose liabilities and grant relief to such parties. With their authority comes an even greater responsibility to decide cases fairly, independently and in accordance with law”.
A justice is to preserve the sanctity of his office via his conduct in both his private and professional life. Another arm of the merit principle is the high principle set by a judge’s judgment. He/she must have a strong realisation that the margin of error for his judgments is minimal. Reiterating this Mr. Justice Mian Gul Hassan Aurangzeb while presiding over the certificate awarding ceremony on 23rd January 2016 on “Criminal Trial and Appreciation of Evidence” noted that the Judgments should become a symbol of justice in the society. Similarly, amongst the other qualities of a judge, for him to stand the grounds of the principle of merit, is his ability to be an agile learner who’s capable to adapting to fast changing circumstances. Further In the case titled Mian Irfan Bashir PLD 2021 SC 571 Justice Mansoor Ali Shah was pleased to hold that a judge is to remain within the bounds of the law and Constitution, showing that preservation of their oath at all costs is also what makes a judge stand firm on the principles of merit set out for him.
The old age maxim of equity ‘Ignorantia Juris Non Excusat’ or Ignorance of law is no excuse as the law is knowable, reflects upon the need for judges to know the law on the sleeves of their robes. Good application of law and a legal acumen are credentials which distinguish one Judge from the rest when it comes to Judicial appointments based on merit. In Government of K.P.K through Secretary Home 2017 this principle was reaffirmed. Mr. Justice (r) Dost Muhammad Khan was pleased to hold that it is the duty of the judges to apply the correct law to the facts of the case. The competence and calibre of a judge can be determined/judged based on what he writes, how he writes i.e. his judgments. Mr Justice Umar Ata Bandial mentioned in his address that judges serve the nation through their judgments and that the greatest virtue of an adjudicator is uprightness which leads him to pass just decisions.
The merit principle enhances judicial competence. By prioritizing qualifications and achievements, the merit principle aims to place the most capable judges on the Supreme Court. This can potentially improve the quality of judicial decisions and legal interpretations. Further, Merit-based promotions may encourage judges to excel in their roles, knowing that their advancements are based on their performance rather than merely their tenure. The merit principle also promotes an objective evaluation process, reducing the influence of subjective factors in judicial appointments. However, determining merit can be subjective, as it involves assessing qualitative factors such as judicial philosophy and previous rulings, which may be open to interpretation. Also, the merit-based system may lead to favouritism if not managed transparently, as influential figures may sway decisions based on personal biases.
On the other hand, the seniority principle asserts that judicial appointments should be based on the length of service. According to this principle, the most senior judge is elevated to the Supreme Court, reflecting a respect for experience and seniority within the judicial hierarchy. Constitutional Petition No. 1 of 2000 (2000) is the case which reinforced this principle. The Supreme Court clarified that seniority should be a primary consideration for the elevation of judges to the Supreme Court, reflecting the established practice within the judiciary. Seniority-based promotions provide a clear and predictable path for career progression, which can contribute to stability within the judiciary.
This above-mentioned principle acknowledges the value of experience gained through years of service, potentially ensuring that those who have dedicated significant time to the judiciary are rewarded. Furthermore, Seniority offers a clear, objective criterion for promotions, reducing the potential for personal biases to influence decisions. However, this principle is not without its challenges. Relying solely on seniority can lead to stagnation if less experienced but more capable candidates are overlooked. This may inhibit the introduction of fresh perspectives into the judiciary. When promotions are based strictly on tenure, it might reduce the incentive for judges to strive for excellence and continuous improvement.
In Pakistan, the debate over merit vs. seniority in the elevation of Supreme Court judges is particularly contentious. The judiciary, a crucial institution in Pakistan’s democratic setup, often finds itself at the center of this debate. Advocates for merit-based elevation argue that the increasing complexity of legal issues requires highly skilled judges. They contend that promoting based on merit ensures that only those with exceptional legal acumen and judicial temperament reach the highest court. Additionally, merit-based systems are seen as aligning with international best practices, promoting a more dynamic and responsive judiciary.
On the other hand, defenders of the seniority principle stress the importance of respecting the hierarchical structure and ensuring that judges who have dedicated their careers to the judiciary are recognized. They argue that seniority reflects a long-standing commitment to judicial service and provides a clear, unbiased mechanism for promotions. Naseer Ahmed Baloch v. Federation of Pakistan (2010) is the case which involved the issue of judicial appointments and seniority. The Supreme Court upheld the principle of seniority, reiterating that while merit could play a role, the seniority of judges was a key factor in determining appointments to the higher judiciary.
In the landmark Al-Jehad judgment the Supreme Court of Pakistan was asked to decide on the criteria for appointing judges to the Supreme Court. The primary issue was whether appointments should be based on seniority or merit. The case highlighted tensions between the principle of seniority, which traditionally favoured the most senior judges for promotion, and merit-based considerations, which would allow for potentially more qualified candidates to be appointed regardless of their seniority. The Court, in its ruling, emphasized the importance of merit in the appointment process, arguing that while seniority is a significant factor, it should not be the sole criterion. This case was pivotal in shaping the discourse around judicial appointments in Pakistan and the balance between merit and seniority in the selection of judges.
A hybrid approach is proposed, combining elements of both merit and seniority. Such a system might involve a merit-based assessment to determine the qualifications of candidates, with seniority serving as a tiebreaker or a supplementary criterion. This approach aims to balance respect for experience with the need for competence and dynamism. The merit vs. seniority debate in the elevation of Supreme Court judges in Pakistan reflects broader questions about the best way to ensure judicial excellence and fairness. As Pakistan continues to navigate this debate, the focus should remain on strengthening the judiciary’s role as an independent and effective arbiter of justice, essential for the country’s democratic health and legal integrity.
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