PESHAWAR: A lawyer on Monday challenged in Peshawar High Court the exclusion of most-senior judge of a respective high court from Judicial Commission of Pakistan (JCP) for making appointment of judges to that court where constitutional benches had not been made operational.

Advocate Zarak Arif Shah filed a petition, requesting the court to declare as unconstitutional and void a relevant notification issued by JCP on Jan 27, 2025, as the same was contrary to Article 175-A and Article 202-A of the Constitution of Pakistan.

The petitioner sought declaration of the court to the effect that substitution made in Clause 5 (ii) of Article 175-A through Constitution (Twenty-sixth) Amendment Act, should not come into force unless and until the provision of Article 202-A was duly enacted and came into legal operation in accordance with the Constitution.

The said substitution has replaced the words “most senior judge” of a high court with “head of constitutional benches” of high court for the purpose of appointment of judges to the said high court.

Petitioner terms it unconstitutional

However, a proviso to Article 175-A of the Constitution provided that the said amendment should take effect on coming into force of Article 202-A related to formation of constitutional benches in a high court.

The article shall come into force in respect of a high court if the respective provincial assembly, through a resolution passed by majority of the total membership of the respective provincial assembly gives effect to it.

The petitioner sought directives of court for JCP and federal government to restore the pre-impugned notification JCP as was the dictate of the Constitution, pending the fulfilment of conditions contemplated under third proviso to Clause 5 of Article 175-A.

He also prayed the court to restrain respondents from taking any further steps pursuant to the impugned notification, including but not limited to convening meetings of JCP or making appointments to high courts in its reconstituted form.

The petition, filed through senior lawyer Ali Gohar Durrani, includes as respondents JCP through its secretary and federal government through the secretary of ministry of law and justice.

The petitioner said that Eighteenth Amendment, enacted in 2010, introduced several substantive changes to the Constitution, notably the insertion of Article 175-A.

He stated that the said provision established JCP for appointments to Supreme Court and high courts, thereby ushering a new dawn of judicial independence, shifting the appointment process from an executive-led consultative model to a more transparent, structured and inclusive framework.

The petitioner said that following judicial scrutiny by Supreme Court, the structure of judicial commission was modified by Nineteenth Amendment, whereby judiciary was accorded primacy in appointment of judges to superior courts.

He stated that on Oct 20 and 21, 2024, Parliament enacted 26th Amendment, amending various provisions of the Constitution including Clause 5 of Article 175-A.

He said that prior to the said amendment, Articl3e 175-A mandated that the “most senior judge” of a respective high court would be a member of JCP, but now the said phrase was substituted with the words “head of the constitution benches of that high court.”

Notwithstanding the said amendment, he stated that the senior-most judges of high court’s continued to be part of JCP due to a specific condition provided in third proviso to Clause 5 of Article 175-A, which stipulated that substitution under paragraph (ii) would only come into force upon the enactment of enabling legislation under Article 202-A.

The petitioner said that during a meeting of JCP pertaining to appointments to Balochistan High Court, a judge of Supreme Court (member of the commission) raised an objection regarding the participation of senior-most judges of high courts of Balochistan, Lahore and Peshawar, citing the amended language of paragraph (ii) of Clause 5.

He said that attorney general for Pakistan, also a member of the commission, concurred with the objection.

The petitioner said that Chief Justice of Pakistan Yahya Afridi upheld the objection and consequently the impugned notification was issued on Jan 27, 2025, excluding senior-most judges of Lahore, Peshawar, and Balochistan high courts from the commission.

He contended that third proviso to Article 175-A made it abundantly clear that such amendment would become operative only upon enactment of Article 202-A.

“As of today, Article 202-A remains inoperative in the absence of any legislative enactment by the respective provincial assemblies, as required under the said Article,” he stated.

Therefore, he said, until such legislation was enacted, senior-most judges remained lawful members of judicial commission under the unmodified regime.

Published in Dawn, August 5th, 2025