The Call to Postpone Judicial Appointments
Four Supreme Court judges—Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Ayesha Malik, and Justice Athar Minallah—have written to Chief Justice of Pakistan (CJP) Yahya Afridi, urging him to delay the appointment of eight new Supreme Court judges until challenges to the 26th Constitutional Amendment are resolved. The Judicial Commission of Pakistan (JCP), reconstituted under the amendment to include parliamentarians, is scheduled to meet on February 11, 2025, to finalize these appointments. However, the judges argue that proceeding now risks undermining public trust and creating perceptions of “court-packing”.
The 26th Amendment and Its Constitutional Challenges
Key Reforms Under Scrutiny
The 26th Amendment, passed in 2024, restructured the judiciary by:
- Allowing parliamentary involvement in judicial appointments via the JCP.
- Altering the process for transferring judges between high courts.
- Removing the requirement for presidential consultation with chief justices during transfers.
Pending Petitions and Full Court Demands
Over two dozen petitions challenge the amendment’s constitutionality, arguing it erodes judicial independence. Senior lawyers and judges, including Justices Shah and Akhtar, have repeatedly demanded a full court hearing to ensure transparency. Despite a Supreme Court committee’s October 2024 decision to convene a full court, CJP Afridi has delayed hearings, deepening institutional tensions.
Risks of Proceeding with Appointments
Perceptions of Court-Packing
The judges warn that appointing new justices under the contested amendment would create a conflict of interest. New appointees, beneficiaries of the amendment, could influence its constitutional review, leading to public perceptions of bias or manipulation.
The “Full Court” Dilemma
If the JCP proceeds:
- Including New Judges: A full court with newly appointed justices would face accusations of favoring the amendment.
- Excluding New Judges: The bench would lack legitimacy, as it would not represent the entire court 24.
This Catch risks irreparably damaging the judiciary’s credibility.
The Islamabad High Court (IHC) Seniority Dispute
Unresolved Oath-Taking and Transfers
Three judges transferred to the IHC from other high courts did not retake oaths, as required by Article 194 of the Constitution. Despite this, their seniority was adjusted, making one eligible for Supreme Court nomination. The Supreme Court judges argue this violates constitutional norms and creates a “defective” candidate slate for the JCP meeting.
Broader Implications for Judicial Independence
The IHC controversy reflects systemic issues in judge transfers under the 26th Amendment. Critics argue such moves prioritize political agendas over merit, eroding institutional autonomy.
Historical Context and Institutional Tensions
Precedent of Judicial Pushback
This is not the first clash over the 26th Amendment. In November 2024, Justices Shah and Akhtar accused CJP Afridi of ignoring committee decisions to expedite hearings, leading to an unprecedented rift within the court.
Public Trust at Stake
The judiciary’s legitimacy hinges on resolving these challenges transparently. Delays and perceived politicization have already fueled public skepticism, with lawyers and civil society groups condemning the amendment as a threat to judicial independence.
Potential Outcomes and Recommendations
Paths Forward
- Postpone JCP Meeting: Delay appointments until the full court resolves the amendment’s validity.
- Expedite Full Court Hearing: Address petitions immediately to prevent constitutional crises.
- Clarify Seniority Rules: Resolve IHC disputes to ensure appointments align with constitutional mandates.
Long-Term Reforms
- Establish clear criteria for judicial appointments under Article 175A(4) to ensure transparency.
- Repeal or amend contentious clauses in the 26th Amendment to restore judicial autonomy.
Conclusion: A Test for Pakistan’s Judiciary
The standoff over judicial appointments underscores a broader struggle to balance constitutional reforms with institutional integrity. As Justice Mansoor Ali Shah noted, the judiciary’s credibility depends on resolving these issues impartially and urgently. Failure to do so risks deepening public distrust and destabilizing Pakistan’s legal framework.
