Induction of lower court judges: SC hears challenge of LHC’s administrative orders today

By Abid Butt

LAHORE: A full bench of the Supreme Court of Pakistan is to hear petitions today challenging administrative orders of Lahore High Court (LHC) regarding the induction of additional district and sessions judges.

The main arguments on the petitions are expected on whether the administrative orders of high court judges can be questioned. The case is likely to set a precedent. Interestingly, Justice Tassadaq Hussain Jillani, one of the members of the bench, also figures among the list of respondents in the petitions challenging his orders as judge of the LHC.

Four former civil judges and two advocates have separately challenged the fairness and transparency of the last induction of additional district and sessions judges by the LHC.

The LHC has already dismissed one such petition, ruling that no petition against the orders of high court judges is maintainable, even if the orders are administrative rather than judicial.

Among the former civil judge applicants are Amir Iqbal Basharat, Arshad Mahmood, Waqarul Hassan Butt and Iqbal Khan Niazi. Javed Hussain and Ali Nawaz are the two advocates who have challenged a notification of the LHC regarding recruitment of the judges.

Among the respondents are the then LHC registrar, the LHC chief justice, Justice (r) Fakharun Nisa Khokhar, Justice M Javed Buttar, Justice Tassadaq Hussain Jillani, Justice Ijaz Ahmed, Justice (r) Muhammad Zafar Yasin and Justice Jamshed Ali Shah.

The appellants have said that the unfairness and lack of transparency in the selection process could endanger the independence of the judiciary. All the applicants cleared the written tests and interviews for the AD&SJ posts, but were dropped at the last minute on criteria of eligibility.

The petitioners say that they were dropped “illegally, capriciously and that the decision to drop their names from the final list was not only arbitrary but also tainted with mala fide intentions on the part of the respondents including no less than the chief justice of the LHC and his colleagues in the then administrative committee”.

Technically, the jurisdiction of the Supreme Court can only be invoked directly through a petition under Article 184 (3) of the Constitution, which requires the plea to raise some point of public interest. The petitioners argue that to have an independent judiciary is the basic right of the public and that unfairness in the induction of lower judges flouts this right of the citizens of Pakistan.

An independent judiciary also involved the fair and transparent appointment of the presiding officers of courts, because the fundamental right of access to the judiciary presupposed the fair appointment of judges, the petitioners say.

“If the public has no confidence in the courts, it could take the law in its own hands. Such confidence is only inspired if the courts work independently.”

The petitioners were denied induction on the grounds that they did not have 10 years experience as advocates. However, they were initially cleared to take the tests because they had served as advocates and civil judges for a combined period of at least 10 years.

The petitioner also passed the tests and interviews at the top of the list. The petitioners say whether a candidate is eligible to apply must be decided before selection and not vice versa.

Two of the petitioners were appointed through official gazette notification on April 1, 2004, but their eligibility was questioned via another notification dated May 8, 2004. They also say AD&SJs have been appointed before who had 10 years combined experience as advocates and civil judges and are still serving in the courts of Punjab.

“It is a settled principle of interpretation that once an administrative authority adopts a course of construction of provisions of statute or rules consistently for a long period of time, it cannot be suddenly and abruptly allowed to deviate or depart from that course,” the petitioners say.

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