Malik Waqar
Another member of the Judicial Commission of Pakistan (JCP) has urged the Chief Justice of Pakistan (CJP) Yahya Afridi to postpone the commission’s scheduled meeting on February 10, 2025, until the seniority issue of Islamabad High Court (IHC) judges is resolved in accordance with the law.
In his letter, Senator Ali Zafar has requested the postponement of the scheduled meeting, citing concerns over the seniority dispute of Islamabad High Court judges.
The letter also highlights that four Supreme Court judges have already requested the postponement of the meeting. Furthermore, it mentions that the transfer of judges has altered the seniority list of the IHC, raising concerns that these transfers may have been arranged to influence appeals related to PTI founder and Bushra Bibi.
Senator Ali Zafar suggested that it would be appropriate to address the seniority concerns before proceeding with judicial appointments.
Additionally, he proposed that if the commission insists on holding the meeting, then the recently transferred judges should not be considered for appointment.
A couple of days ago four judges of the Supreme Court of Pakistan, in a letter, demanded putting on hold the process of appointment of eight new judges to the apex court till the challenges to the 26th Amendment were decided.
The letter — signed by senior puisne judge Justice Mansoor Ali Shah and justices Munib Akhtar, Athar Minallah and Ayesha Malik — was addressed to Chief Justice of Pakistan (CJP) Justice Yahya Afridi.
The Judicial Commission of Pakistan (JCP) is scheduled to meet on February 10 to consider filling eight vacant seats of judges at the Supreme Court. The JCP approves judicial appointments. It was reconstituted to include four members of parliament by the Constitution (Twenty-sixth Amendment) Act, 2024, which brought numerous changes pertaining to the judiciary.
The Supreme Court’s Constitutional Bench has taken up a number of challenges to the amendment.
“It is requested that the scheduled meeting and the appointment of eight new judges be postponed till the challenge to the 26th Constitutional Amendment is decided one way or the other, or at least until the Constitutional Bench decides the applications for convening a full court to hear and determine that challenge and till the matter of the transfer of judges to the Islamabad High Court and their seniority is finally determined on the judicial side since we are given to understand that such challenges have been launched,” the letter reads.
The judges said the “existing and continuing state of affairs and certain recent developments” had compelled them to make the request. They pointed out that the challenges to the 26th Amendment were lingering and languishing before the Constitutional Bench.
“For diverse reasons, which to some are obvious to the point of being self-evident, these challenges needed to be dealt with by the full court urgently and immediately, and ought, therefore, to have been so heard already.
“The request to convene a full court was brought on the record by some of us earlier. However, the matters were sent off to the Constitutional Bench, where a first formal hearing was held after a considerable delay. Now, the aforementioned meeting for induction of new judges has been scheduled surprisingly and rather hurriedly before the next date of hearing in the said matters before the Constitutional bench.”
The judges said the development could “further imperil and erode the public trust and confidence reposed in the institution”.
They pointed out that public trust in the judiciary presently hinged “crucially” on how pleas against the amendment were dealt with. “The induction of new judges, at this stage, who are clearly beneficiaries of the amendment, will weigh heavily on the faltering public trust enjoyed by the institution today and unnecessarily make matters more complicated,” they added.
“The dilemma that will be created if the meeting goes ahead to reach its stated objective can be stated as follows. If the Constitutional Bench accepts the applications and directs the convening of the full court to hear and decide the challenges to the amendment, the question will then inevitably arise as to who will comprise the full court for such purpose.
“This is so because if by that time eight new Judges have assumed office as proposed it would create an anomalous situation. On one view the full court would include the new appointees. But they would have come in under the amendment itself. This will, inter alia, give rise to a public perception of court-packing, which would severely damage the image of the highest institution of justice in the country as to its impartiality and independence.
“On the other view, the full court for the purposes at hand could only be the judges on the court at the time of the enactment of the amendment, and still in office. But that, some might argue, would not be the full court and contend that in the altered circumstances the full court cannot sit at all for considering the challenges to the amendment. This will again create the perception of court-packing, though this time from different perspective, i.e. to preclude at all a sitting of the full court, which will further dent and erode public confidence in the institution. The net result may be to create an impression of the inevitability of the challenges being heard only by the Constitutional Bench That would reinforce the negativities that, unfortunately, already swirl around the court,” the letter reads.
The judges questioned why the court was being placed in such a position and “whose agenda and interests are served in so exposing the court to indignity and perhaps even we regret to say ridicule? “Why place the court on the horns of an avoidable dilemma? Is it not therefore imperative that the matter of induction of new judges be reassessed and, for the time being, put to one side? These questions, we believe, answer themselves.”
The four judges urged that the apex court must carefully consider the full court’s timing and composition to preserve its integrity and credibility, which was not just that of the highest judicial institution but of the entire legal system.
“Yet, the holding of the meeting may preclude, if not effectively eliminate, precisely any such possibility. Any decision rendered by the full court, if at all constituted after the induction of new judges, may well fail to command public trust and confidence. The only viable solution and option in the present circumstances is therefore to postpone the meeting,” the judges reasoned.
