• In a letter, senior judges warn against perceived ‘bias’ in appointments before decision on 26th Amendment
• Fear appointments will put court ‘on the horns of an avoidable dilemma’
• Find legally permissible consideration of candidates impossible after ‘defective transfer’ of judges to IHC
ISLAMABAD: As the Judicial Commission of Pakistan (JCP) is set to meet on Feb 10 to consider elevation of eight judges to the Supreme Court, four senior SC judges on Friday requested Chief Justice of Pakistan (CJP) Yahya Afridi to consider postponing the session until a decision on the petitions against the 26th Amendment.
In the alternative, the JCP should wait till SC’s constitutional bench decides applications seeking a full court hearing to determine the challenges, or the matter of judges’ transfer to the Islamabad High Court (IHC) and their seniority is determined on the judicial side, the judges wrote to CJP Afridi.
In a three-page letter, senior puisine judge Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Ayesha A. Malik and Justice Athar Minallah explained that a request to convene a full court on challenges to the 26th Amendment was brought on the record by some judges, but the matter was sent to the constitutional bench, where the first formal hearing was held after ‘a considerable delay’.
Until the petitions are decided finally, the scheduled JCP meeting may imperil and erode public trust and confidence reposed in the institution, the letter feared, adding that the public trust in the judiciary does not merely hinge on the legal attributes of the judgements rendered, but was based essentially on the trust and confidence of the public in its impartiality and independence.
At this stage, the induction of judges who were beneficiaries of the 26th Amendment would weigh heavily on faltering public trust enjoyed by the institution and unnecessarily make matters more complicated, the letter pointed out.
It elaborated that if the constitutional bench allows the applications for full court hearing to decide challenges to the 26th Amendment, the question about composition of the full court will inevitably arise.
If eight new judges assume office as proposed, it would create an anomalous situation, the letter feared, adding that one view suggests if the full court would include the new appointees it could give rise to a public perception of court-packing, thus severely damaging the judiciary’s image as to its impartiality and independence.
On the other hand, if the full court would only be those judges who were part of the apex court at the time of the enactment of the 26th Amendment and still in office, this will again create perception of court-packing, thus further eroding public confidence in the institution.
They said the net result could be to create an impression of inevitability of challenges being heard only by the constitutional bench. This would reinforce the negativities that unfortunately already swirled around the court, the senior judges wrote.
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 only viable solution and option in the present circumstances to save court’s dignity was to postpone the Feb 10 sitting, the letter suggested.
Judges’ transfer
Referring to the recent transfer of judges to the IHC from different high courts under Article 200, the letter stated the transfer could neither be permanent nor open-ended, rather should be temporary and time bound.
But in this case no period was specified indicating that the transfer order/notification could be recalled any time, with obvious consequences for judiciary’s independence, the CJP was reminded.
Judges transferred under Article 200 (1) are required to take oath of office in the transferred high court, the letter said, adding there were obvious implications and consequences for seniority of the transferred judge, who of course, will always retain and have a lien on their seniority in the high court of origin.
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 across the country.
“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 (i.e. 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.
Published in Dawn, February 8th, 2025
