Triple legal blows
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THREE key verdicts from the Constitutional Bench have again stoked fears about judicial capture under the 26th Amendment. The decisions may not be legally strong but observers say they suit both parts of a hybrid set-up.
The first verdict okays military courts. The International Commission of Jurists says such courts lack competence, impartiality, open trials and detailed verdicts. This creates issues in civilian courts given the narrow scope of appeals. But the lawmakers have yet to pass the appeals law the verdict ordered. Local jurists say the decision harms the constitutional right to free trials, and may serve the government’s aim of hounding PTI cadres via fake trials.
The second decision okays the presidential transfer of three judges to the Islamabad High Court. But many say it lacks public interest aims. Firstly, this is the first such transfer in over 15 years. IHC and other judges are hired via the Judicial Commission route, which ensures more transparency as the judiciary initiates it and it has a large body of judges, legislators, executives and external experts. But judicial transfers are led by the executive, which affects judicial freedom, involve only a few judges and raise seniority issues. Transfers to new courts lacking senior judges can serve the public interest but they, too, must ideally occur via the Judicial Commission route. But the IHC had equally senior judges and didn’t need more.
Secondly, the judge made IHC head ranked 15th in Punjab, thus bypassing several judges — now and in the race to the Supreme Court. Some say that since senior IHC judges had gone public about establishment pressures, a head seen as pliant was deemed necessary to exclude them from PTI cases and key court roles.
The seniority issue is complex. Such transfers were last done shortly after the IHC was set up in 2007 when seniority didn’t matter as it had no judges. The law is mum on the transfer of seniority across high courts. We lack a national judicial cadre unlike India. Here, each court has its own seniority list. The judges’ oath is court-specific and considered non-transferable. Yet, the judges transferred to the IHC didn’t take a fresh oath as IHC judges, and past court verdicts link seniority to the oath date. The first transfer order, okayed even by five chief justices of the high courts and Supreme Court, left this unaddressed. The Constitutional Bench asked the president to fix it, but without a clear law, asking the executive to ‘fix’ the matter affects judicial freedom, especially as the five chief justices were seemingly bypassed and the final say was given to the president. The Bench must fix this anomaly fairly in appeal. It must ensure the seniority of all IHC judges is protected and nullify the use of the transfer route given the issues outlined here. Or it may give the new IHC judges a lower position in the seniority lists.
Judicial freedom comes from ending the executive hold on judges.
The third verdict is on reserved seats. The January 2024 apex court verdict told the Election Commission to cancel the PTI’s poll symbol, which led to the party’s being barred from the polls. The Supreme Court’s July 2024 verdict simply undid the wrong; it declared as PTI nominees those whose polls papers had its name and gave independents the option to join it as it was wrongly delisted as an Assembly party earlier. The apex court often takes bigger steps to fix wrongs. It reinstated assemblies in 1993 and 2022 to PML-N’s gain. Some object that the PTI wasn’t a party to the case and independents were given 15 days against the legal limit of three days. But the court often gives relief to those not part of cases and extends legal deadlines under Article 254 if needed — for example, the no-trust vote deadline in 2022. In a questionable move, the Constitutional Bench gave the PTI’s reserved seats to others, disproportionately to their general seat strength. Since leaving the seats vacant or giving them to the SIC would have been debatable too, the only legal option is relief to the PTI.
Judicial freedom comes from ending the executive hold on judges and their hiring. Our last judicial hiring system was a global good practice that cut the executive’s hold via a two-step process led by judicial and bipartisan assembly forums. Its only gaps were the lack of merit criteria and open applications. But we wrongly revived executive hold on judicial hiring, leading to the establishment’s hold on the judiciary. We must revive the last system to avoid verdicts that harm democracy. The writer has a PhD from the University of California, Berkeley, in political economy and 25 years of grassroots to senior-level experiences across 50 countries. The writer has a PhD from the University of California, Berkeley, in political economy and 25 years of grassroots to senior-level experiences across 50 countries.
Published in Dawn, July 8th, 2025
