Seniority row: 5 judges urge SC to restrain Justice Dogar from duties as acting IHC CJ

 Title: Seniority Row: 5 Judges Ask Supreme Court to Restrict Justice Dogar from Work as Acting IHC CJ

The continuous controversy over the appointment of judges and the pecking order in Pakistan's judicial system has again knocked at the door of the Supreme Court, as five judges of the Islamabad High Court (IHC) have called upon the apex court to bar Justice Aamer Farooq Dogar from taking up the charge of acting Chief Justice of the IHC. This latest occurrence has raised issues regarding the role of seniority, judicial independence, and constitutional precedent in the selection of significant judicial players

The Background

The controversy here revolves around the ad-hoc appointment of Justice Dogar as Acting Chief Justice of the Islamabad High Court (IHC) after the retirement of the previous IHC CJ, Justice Athar Minallah. The controversy lies in the fact that, traditionally, judicial appointments at this stage are done according to seniority, and the appointment of Justice Dogar violated this long-standing convention.

Justice Dogar's appointment has provoked protests from within the IHC. Five judges, who are senior to Justice Dogar, have complained about his promotion to the position of acting CJ. They contend that the seniority principle, which has been a pillar of judicial appointments for decades, needs to be maintained. They hold the view that this tradition ensures the integrity and impartiality of the judicial process, as well as public confidence in the independence and impartiality of the judiciary.

The Role of Seniority in Judicial Appointments

Seniority within the courts is not a fig leaf—it's an instituted principle deeply rooted in the ethos that the appointment of judges is a promise of transparency and fairness. The most senior judge is deemed to possess the requisite experience, wisdom, and temperament to head the judicial institution.

The controversy regarding the appointment of Justice Dogar highlights the tension between existing conventions and flexibility at times of transition. As there could be genuine reasons to appoint a judge other than the most senior, these departures from convention need to be supported by sound legal justification and not viewed as a whim of the powerful.

The Legal and Constitutional Implications

The five judges who have lodged the petition in the Supreme Court are seeking intervention of the court and, more specifically, a restraint order to prohibit Justice Dogar from performing the duties of acting CJ. According to them, such an intervention is absolutely essential to uphold the rule of law and constitutional structure that deals with the appointments within the judiciary.

At the core of their argument is the fear that Justice Dogar's appointment erodes the institutional integrity of the IHC. The petitioners argue that upholding the appointment would create a perilous precedent, leading to further departures from the settled legal framework and undermining the independence of the judiciary.

The issue has also become a subject of controversy not just within the IHC but also among the broader judicial fraternity in Pakistan. The controversy has brought to the fore the wider issue of judicial independence and the need to ensure that judicial appointments are made on the basis of merit, seniority, and in accordance with the Constitution.

Moving Forward

The matter is now before the Supreme Court, which will need to weigh the significance of seniority against the imperative of judicial flexibility in appointments. A decision in this case will have profound implications, as it could conceivably reconstitute the basis of judicial appointments in Pakistan. It will also indicate the Court's position on judicial independence and its dedication to defending constitutional values.

Although the result is unclear, one thing is certain: the controversy has highlighted the internal politics of Pakistan's judiciary. It has posed significant questions regarding how the judicial process works and to what degree the rules and norms that govern appointments must be adhered to—or reinterpreted—when extraordinary situations present themselves.

Conclusion

The appeal to the Supreme Court requesting it to hold back Justice Dogar from assuming the role of Acting IHC Chief Justice is indicative of the increasing polarization on the issue of judicial appointments on the basis of seniority in Pakistan. The case reflects the dilemma of reconciling tradition with the needs of an evolving judicial system. While the Supreme Court considers the case, its judgment will define the course of future judicial appointments and their alignment with constitutional and legal standards. It will also present a key test of the Court's willingness to ensure the independence of Pakistan's judiciary by guaranteeing that appointments are done in a manner consistent with upholding the confidence of the people and sustaining the rule of law.