January 18, 2025
By Ahmed Saeed
LAHORE
The newly established Judicial Commission of Pakistan (JCP), formed under the 26th Constitutional Amendment, has now begun the process of appointing judges to the high courts and the Supreme Court. However, this new constitutional scheme has sparked controversy, with critics warning that the executive’s dominance in the JCP could lead to biased judicial appointments.
Legal professionals, including leaders from the Supreme Court Bar Association and the Pakistan Bar Council, have welcomed the new method. They argue that the restructured JCP is more inclusive and restores the crucial balance between the judiciary and the executive— something that has been absent since 1947.
The History of Judicial Appointments
The appointment of judges in Pakistan’s superior judiciary has long been mired in controversies and allegations of bias. Over the decades, this process has reflected the ongoing power struggle between the executive and the judiciary, evolving significantly at different points in time.
Early Framework and Executive Dominance
After Pakistan gained independence in 1947, the Government of India Act, 1935, was amended to serve as the interim constitution. Under this framework, the authority to appoint judges to the higher judiciary rested solely with the Governor-General, the head of the executive.
In 1956, Pakistan adopted its first constitution. It empowered the President to appoint the Chief Justice of the Supreme Court while requiring consultation with the Chief Justice for appointing other judges. High Court appointments mandated consultations involving the President, the provincial Governor, the Chief Justice of Pakistan, and the respective High Court Chief Justice.
This framework persisted until the abrogation of the 1956 Constitution in 1958. Under General Ayub Khan’s martial law, the 1962 Constitution retained a similar structure but allowed the executive significant influence, often bypassing mandatory consultations with the judiciary.
Judicial Appointments Post-1973 Constitution
The 1973 Constitution, framed during Zulfikar Ali Bhutto’s government, maintained the consultative process for judicial appointments. However, this mechanism was disrupted by General Zia-ul-Haq’s martial law in 1977. Zia dismissed pro-democracy judges and appointed others aligned with his regime through a Provisional Constitutional Order (PCO).
After the 8th Constitutional Amendment in 1985, the original consultative process was formally restored. Yet, General Zia continued to exercise unilateral power, often disregarding the Chief Justice’s recommendations.
Al-Jehad Trust Case
The return to democracy in 1988 saw a dispute between Prime Minister Benazir Bhutto and President Ghulam Ishaq Khan over judicial appointments. The Lahore High Court ruled that the Prime Minister had no constitutional role in the process. An appeal to the Supreme Court was filed but withdrawn following Bhutto’s dismissal.
During Benazir Bhutto’s second term in 1993, Justice Sajjad Ali Shah was appointed Chief Justice, bypassing three senior judges. Petitions challenging this appointment culminated in the landmark Al-Jehad Trust case in 1996. The Supreme Court ruled that the President must engage in meaningful consultation with the Chief Justice to minimize executive influence.
The judgement also said that the opinion of the Chief Justice will be given precedence, and if the President does not agree with the Chief Justice’s opinion, then reasons shall be provided in writing.
The decision also emphasized adherence to seniority and merit. It said that the appointment of the Chief Justice and Supreme Court judges should consider both the eligibility of the judges and the principle of seniority.
However, the ruling led to further conflicts. In 1997, Nawaz Sharif came into power for the second time and soon became embroiled in a conflict with Chief Justice Sajjad Ali Shah.
The dispute reached the upper echelons of the judiciary, with the judges of the Supreme Court visibly divided into two factions.
In December 1997, a 10-member Supreme Court bench effectively removed Chief Justice Sajjad Ali Shah, ruling that his 1993 appointment had violated the principle of seniority.
Martial Law and the Lawyers’ Movement
General Pervez Musharraf’s martial law in 1999 marked another phase of executive dominance. Musharraf dismissed non-compliant judges and made new appointments through a PCO.
In 2007, when the lawyers’ movement gained momentum, Musharraf dismissed approximately 60 judges, suspended the constitution, and promulgated a second PCO. These actions underscored the need for an independent judicial appointment mechanism.
The 18th and 19th Amendments
The 18th Amendment to the Constitution in 2010 introduced a transformative shift in judicial appointments. It established the Judicial Commission of Pakistan (JCP), chaired by the Chief Justice and including four senior judges of the Supreme Court, a retired judge, the federal law minister, the Attorney General, and a bar representative.
The Chief Justice held the power to nominate judges for approval by the JCP. If the nomination received the commission’s approval, either through consensus or majority vote, it then required the endorsement of a Parliamentary Committee.
This eight-member committee, equally divided between government and opposition members, could reject nominations with a three-fourths majority. However, the 18th Amendment was challenged in the Supreme Court, which raised concerns over the committee’s veto power. The 19th Amendment subsequently required the committee to provide written reasons for rejecting JCP recommendations.
In 2011, the Supreme Court further curtailed the committee’s powers, ruling that its decisions would be subject to judicial review and that it could not assess nominees’ professional competence.
This period saw the Chief Justice gain significant control over appointments, as he held exclusive power to nominate judges to the JCP. This led to criticism from bar associations, which called for a more inclusive and democratic process for appointment of judges.
The 26th Amendment: A New Era
In 2024, the 26th Amendment brought another major overhaul. It merged the Judicial Commission and the Parliamentary Committee, creating a single body with expanded membership. The reconstituted JCP now includes the Chief Justice, three senior-most judges, a senior constitutional bench member, the federal law minister, the Attorney General, a bar representative, two members each from the government and opposition, and a civil society representative.
This restructuring increased the executive’s influence, as non-judicial members outnumber judicial members. Additionally, the amendment abolished the seniority principle for appointing the Chief Justice, allowing a Parliamentary Committee to select the Chief Justice from among the three senior-most judges of the Supreme Court.
Since the enactment of the 26th Amendment, the government has successfully secured approval for its judicial appointments, including those to constitutional benches, through a majority vote.
This development marks the latest chapter in Pakistan’s ongoing struggle to balance judicial independence and executive authority. Whether the new framework will address past grievances or create fresh challenges remains to be seen.