ISLAMABAD: Four senior judges of the Supreme Court (SC) Friday requested Chief Justice of Pakistan (CJP) to postpone the appointment of new judges to the apex court till the challenge to the 26th Constitutional Amendment was decided one way or the other.
A letter addressed to Chief Justice of Pakistan (CJP) Yahya Afridi, Chairman of the Judicial Commission of Pakistan (JCP), has requested the postponement of the scheduled meeting and the appointment of eight new Supreme Court judges. The judges urged that the process be delayed until the challenge to the 26th Constitutional Amendment is decided or, at the very least, until a constitutional bench rules on applications seeking a full court hearing on the matter. Additionally, they added that appointments should be deferred until the issue of judges’ transfers to the Islamabad High Court (IHC) and their seniority is resolved through judicial proceedings.
The letter has been signed by Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Athar Minallah and Justice Ayesha A. Malik. They said that the JCP, as constituted under the 26th Constitutional Amendment, was scheduled to meet on February 10, 2025 to consider the appointment of eight judges to the Supreme Court of Pakistan. “The existing (and continuing) state of affairs and certain recent developments impel us to write to you to make the request,” the judges wrote, adding that the request to convene a full court was brought on record by some of them earlier.
The judges, however, said that the matters were sent off to the constitutional bench, where a first formal hearing was held after a considerable delay and now, the aforementioned meeting for induction of new judges had been scheduled surprisingly and rather hurriedly before the next date of hearing in the said matters before the constitutional bench. The judges maintained that currently, the public trust in the judiciary hinges crucially on how the petitions impugning the amendment are dealt with, adding that the induction of new judges, at this stage, who are clearly beneficiaries of the Amendment, will weigh heavily on the (faltering) public trust, enjoyed by the institution today and unnecessarily make matters more complicated. “The dilemma that will be created if the meeting goes ahead to reach its stated objective can be stated as follows. “If the constitutional bench (CB) accepts the applications and orders for convening of the full court to hear and decide the challenges to the Amendment, the question will then inevitably arise as to who will comprise the full court for such a purpose,” they wrote, adding that “this is so because if by that time, eight new judges have assumed office as proposed, it would create an anomalous situation”.
They said that according to one view, the full court would include the new appointees, but they would have come in under the Amendment itself, adding that this will, inter alia, give rise to a public perception of court-packing, which would severely damage the image of the highest institution of justice in the country as to its impartiality and independence. “On the other view, the full court for the purposes at hand could only be the judges on the court at the time of the enactment of the Amendment, and still in office,” the judges wrote but added that some might argue, would not be the full court and contend that in the altered circumstances, the full court could not sit at all for considering the challenges to the Amendment. They said that this will again create the perception of court-packing, though this time from a different perspective, i.e. to preclude at all the sitting of the full court, which will further dent and erode public confidence in the institution. “We, therefore, ask: why put the court in this position? Whose agenda and interests are served in so exposing the court to indignity and perhaps even (we regret to say) ridicule,” the four judges questioned and inquired as to why place the court on the horns of an avoidable dilemma. The four judges said that the only viable solution and option in the present circumstances is, therefore, to postpone the meeting.
They also touched on the issue of the transfer of three judges from three different high courts to the Islamabad High Court (IHC) under Article 200 of the Constitution. “We have seen the order of transfer that has been issued under authority of the President which now, it seems to be clear from clause (2) of Article 200, which categorically speaks of a period of transfer, that a transfer cannot be permanent or open-ended,” the judges wrote but added that it can only be temporary and must be time-bound.
They said that whereas in the case under discussion, no period is specified that could mean (quite apart from the very transfer being prima facie constitutionally suspect) that the transfer order/ notification may be recalled at any time, with obvious consequences for the independence of the judiciary. “We note also clause (3) of Article 200, which applies when a high court is working at full sanctioned strength and there is a need to temporarily increase the number of judges,” the judges wrote, adding that this clause provides expressly that the judge required to attend sittings in terms of this clause shall “while so attending the sittings of the high court... have the same power and jurisdiction of that high court” simply because of so sitting.
They further said that that indicated that the judge would not be required to take an oath of office as a judge of the high court where he or she is being required to attend sittings. “Prima facie this seems to necessarily imply (to put it no stronger than that) that a judge transferred under clause (1), which is the situation at hand, is required to take an oath of office in the transferred high court,” they wrote, adding that in either case there are obvious implications and consequences for seniority of the transferred judge (who of course, will always retain and have a lien on his or her seniority in the high court of origin, but only there).