WITH the public’s attention on the rapidly deteriorating situation in the Middle East, the Judicial Commission of Pakistan quietly voted for a second extension for the Constitutional Bench last week, ensuring that it would continue working under the current stewardship till Nov 30 this year. The decision was made despite a written warning from a senior representative of the judiciary on the JCP, who highlighted the Supreme Court’s “eroding credibility” and the “shaken public confidence in its neutrality” in a letter circulated among its membership. The letter cautioned against allowing the court “to drift under the control or convenience of the executive, which now appears to wield disproportionate influence over the affairs of the JCP”. It is not clear how the votes fell. The last time the Constitutional Bench was granted an extension, all the judges in the JCP had opposed it, except for one. The head of the Bench, Justice Aminuddin Khan, had been the only judge who voted in favour of an extension, along with the government and Pakistan Bar Council’s representatives. One wonders if a similar dynamic was also observed this time.
The concerns raised by Justice Mansoor Ali Shah in his letter to the JCP merit reflection. In particular, as Justice Shah once again pointed out, the constitutionality of the 26th Amendment remains an unsettled question. “Proceeding with extensions or reappointments to a Constitutional Bench whose very legal foundation is under serious constitutional challenge further deepens the institutional crisis and weakens the court’s legitimacy,” he noted. And that is not the only problem with the Constitutional Bench and its perceived image. It is also worth remembering that there are no objective criteria for nominating judges to the bench, nor is there a framework for evaluating their performance. A proposal floated the last time the Bench was being granted an extension, and which was reiterated this time by Justice Shah, is that instead of cherry-picking judges, the JCP should nominate all of the Supreme Court’s justices to the Constitutional Bench. This would appear to be a reasonable way to avoid further controversies involving the superior judiciary. However, it appears certain stakeholders wish to maintain the growing divisions in the Supreme Court, ostensibly to keep its powers in check. Meanwhile, the constitutional scheme of state order continues to slowly collapse.
Published in Dawn, June 25th, 2025
