Four Supreme Court justices on Friday urged Chief Justice of Pakistan (CJP) Yahya Afridi to hold off on eight appointments to the apex court until challenges to the 26th Constitutional Amendment were resolved.
The Judicial Commission of Pakistan (JCP) is set to meet on February 11 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 challenges to the amendment however there are various calls for a full court to hear the matter.
A letter, seen by Dawn.com, on the above situation was sent today to CJP Afridi and the JCP members. The letter was signed by SC senior puisne judge Justice Mansoor Ali Shah and Justices Munib Akhtar, Athar Minallah and Ayesha Malik.
“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 judge 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 above 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.
The letter also detoured to recent developments in the IHC that saw the transfer of new judges and a reshuffling of the seniority order. It said the absence of an oathtaking ceremony made the transfers “suspect”.
“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,” the letter said, pointing to the fact that Justice Sarfaraz Dogar was now being regarded as the IHC’s senior puisne judge.
The apex court judges said the developments in the IHC had “certain consequences” for the JCP meeting since nominations for Supreme Court justices are made from the five most senior judges of each high court.
“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? How can a judge who would and could not possibly have been eligible for any such consideration at all in his own high court, suddenly and in consequence of the alchemy of a prima facie constitutionally suspect and defective transfer become eligible to be considered for the Supreme Court? What cannot be done directly cannot be done indirectly.
“Quite obviously, the slate of candidates, if we may put it so, for consideration at the meeting appears to be constitutionally defective as both including a judge who ought not to be there and excluding one who ought to be (ie, the fifth senior judge of the IHC). A legally permissible consideration of candidates appears therefore not to be possible in the present circumstances,” the letter concluded.
