The issue of the tension currently prevailing between the Bench and the Bar popped up during the ceremony at the Supreme Court marking the advent of the new judicial year. Attorney General Khalid Jawed Khan observed that the tension had never reached the present level. This was thrown into relief by the absence of the SCBA President and PBC Vice President, who sent instead their proxies to speak. Last month the lawyers bodies boycotted the oath-taking ceremony of Mr Justice Muhamad Ali Mazhar for being elevated to the Supreme Court out of turn. This month the lawyers organizations strongly opposed the move to elevate Justice Ayesha A. Malik to the Supreme Court for being a junior judge, which they claimed was yet another unjustified deviation from the seniority principle in the appointment of judges to the apex court. The boycott by the lawyers organisations of the farewell reception-cum-dinner in honour of Mr Justice Mushir Alam was yet another indicator of the bench-bar tension.
In an era of hybrid democracy characterized by powerful institutions extending their turf in disregard of constitutional provisions, doubts and suspicions are bound to be generated whenever courts take decisions by exercising discretion rather than through uniform criteria. Of late brows have been raised and questions asked about the assignment of cases, formation of benches and selection of issues for suo motu action through the CJP’s discretion rather than precisely spelt-out and uniform criteria. At a time when attempts are afoot to silence independent judges and media persons, there is a need on the part of the courts to be extra careful. In a somewhat left-handed compliment, PBC member Amjad Shah praised the agility displayed by the Supreme Court to sentence elected PMs, wishing at the same time that the same should have happened in General Pervez Musharraf’s case, who had abrogated the Constitution twice.
Both competence and seniority matter while elevating a judge to the Supreme Court. Measuring competence through personal discretion in the interesting times that the country is passing through can give birth to suspicions and raise questions as one has seen happening during the last few months. Under the circumstances, there is a need to work out objective criteria to judge a candidate’s competence. Till this is done, seniority remains the only uniform criterion for making appointments without causing disputes.