ISLAMABAD: Chief Justice of Pakistan Yahya Afridi has been requested to postpone the appointment of judges in the Supreme Court till the challenge to the 26th Constitutional Amendment is decided one way or the other.
Four judges of the Supreme Court namely, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Ayesha A Malik, and Justice Athar Minallah, on Friday, wrote a letter to CJP Afridi, who is also the chairperson of Judicial Commission of Pakistan (JCP) and copies of it are sent to all the JCP members.
The commission’s meeting has been scheduled for Monday (February 10) to consider the appointment of eight judges in the apex court.
Appointment of judges in SC: JCP reschedules meeting
They stated that the constitutional validity of the 26th Constitutional Amendment has been challenged by numerous petitioners from diverse segments of society. “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.
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 (CB), 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 CB.
They maintained that this development can further imperil and erode the public trust and confidence reposed in the institution. The four judges reminded CJP Yahya of his observation made in Raja Amir case.
“At the present time public trust in the judiciary hinges crucially on how the petitions impugning the Amendment are 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.”
The dilemma that will be created if the Meeting (JCP) goes ahead to reach its stated objective; “If the CB 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 a different perspective; i.e., to preclude at all the 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 CB. That would reinforce the negativities that, unfortunately, already swirl around the Court.
“We; therefore, ask: why put the Court in this position? 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 Court must carefully consider the timing and composition of the Full Court to preserve its integrity and credibility, which is 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.
“Our concerns regarding the Meeting unfortunately do not end here. For there is another aspect related thereto that requires consideration. This emanates from the very recent transfer of three Judges from three different High Courts to the Islamabad High Court (“IHC”) under Article 200 of the Constitution. We have seen the order of transfer that has been issued under authority of the President.
Now, it seems to be clear from clause (2) of Article 200, which categorically speaks of a “period” of transfer, that a transfer cannot be permanent or open-ended. It can only be temporary and must be time bound.
Where, as in the case under discussion, no period is specified that could mean (quite apart from the very transfer being prima facie constitutionally suspect) that the transfer order/notification may be recalled at any time, with obvious consequences for the independence of the judiciary.
“We note also clause (3) of Article 200, which applies when a High Court is working at full sanctioned strength and there is need to temporarily increase the number of judges. This clause provides expressly that the judge required to attend sittings in terms of this clause shall “while so attending the sittings of the High Court… have the same power and jurisdiction of that High Court” simply by reason of so sitting.
“This indicates that the judge will not be required to take an oath of office as Judge of the High Court where he or she is being required to attend sittings. Prima facie this seems to necessarily imply (to put it no stronger than that) that a judge transferred under clause (1), which is the situation at hand, is required to take an oath of office in the transferred High Court.
In either case there are obvious implications and consequences for seniority of the transferred Judge (who of course, will always retain and have a lien on his or her seniority in the High Court of origin, but only there). In the transferred High Court the seniority would, prima facie, be after the Judges of that High Court.“
“A cursory look at the oath of judges provided in the Third Schedule to the Constitution shows that the oath is specific to a High Court in a Province and not for all the High Courts in the country. Proviso to Article 194 of the Constitution provides that before entering upon office a judge has to take oath and in case of Islamabad High Court, judges of that court shall make oath before the Chief Justice of the Islamabad High Court. Absence of such oath makes the appointment of the transferred judges suspect.
“A visit to the website of the IHC indicates; however, a position quite to the contrary. It appears that the current Chief Justice of the IHC has taken it upon himself to accord seniority to the transferred Judges oblivious to all of the above (and other legal and constitutional points which prima facie may well apply) and in a manner as though there is a cross-over of dates of appointment from the High Courts of origin to the IHC. In particular it appears that the Judge from the Lahore High Court, though at no. 15 in the seniority list of his own High Court, is being regarded as the senior puisne Judge of the IHC.
“What has been expressed in the last few paras is tentative and provisional, being necessarily only prima facie in nature. However, it suffices for present purposes. This is so because what has happened in the IHC has, among other things, certain consequences for the Meeting. Explanation II of sub rule (1) of Rule 9 of the JCP Rules 2024 provides as follows: “Nominations for the appointment of a Judge to the Supreme Court shall be made from among the five most senior Judges of the High Court concerned”. The letter dated 27.01.2025 sent by the JCP Secretariat, reflecting this position, has indicated that the five senior most judges will be considered as nominees for the eight new inductions proposed to be made.
“The consequence of the foregoing is that now the Judge from the Lahore High Court, having been determined to be the senior puisne judge of the IHC, has become eligible for nomination and appointment as a judge of the Supreme Court at the Meeting. How can this be?
Copyright Business Recorder, 2025
Comments