IT appears that, despite years of wrangling over the issue, the country’s top legal minds remain unable to decide by themselves what criteria must be followed when making appointments to the superior judiciary. They have chosen, instead, to delegate the matter to the federal government.

According to reports, a recent meeting of the Judicial Commission of Pakistan was adjourned without a debate on the matter after the law minister revealed that the federal government was considering amending the Constitution to alter the process through which superior court judges are appointed. The discussion was put off because the committee’s deliberations would prove futile in case Article 175A, which sets down the rules for judicial appointments, was successfully altered by the government. This would seem like the logical step to take: the only question that remains is, who has the government involved to advise on the legislative changes it intends to make?

It is worth highlighting that there has been a long-running dispute within the superior judiciary over whether judges ought to be appointed based on the ‘seniority principle’, or purely on consideration of merit. It may be recalled that in the summer of 2022, a major dispute had broken out within the JCP over the nomination of several judges by the then chief justice, Umar Ata Bandial.

In several letters and statements addressed to the chief justice, the legal fraternity had demanded the formalisation of some objective criteria under which judges’ merit could be assessed, and for the seniority principle to be followed till such time as these criteria could be agreed to. This past December, the incumbent CJP finally formed a committee to deliberate on the matter and make its recommendations. It was this committee’s recommendations that were supposed to be discussed at the recent meeting, which ended up being adjourned without debate.

It would appear that the government has now been invited to use its powers and make changes to the Constitution in order to more permanently do away with the existing imbalance of power within the JCP, and also enforce a more universally acceptable mechanism for the elevation of judges. As long as such an intervention is aimed solely at making the current appointment system more equitable and giving elected representatives greater say, there appears to be no harm in welcoming it.

However, the judiciary must remain wary. If it had the power to self-regulate, it ought to have exercised it instead of involving the legislature. There have been rumours that the government is also considering making certain changes to judges’ tenure, which could prove controversial. The superior courts cannot afford more drama. It is therefore hoped that the legislative process will remain transparent, and involve all stakeholders in Pakistan’s judicial system.

Published in Dawn, May 6th, 2024