In a significant development following the 26th constitutional amendment, Justice Yahya Afridi has been appointed as the Chief Justice of Pakistan by a parliamentary committee with a two-thirds majority. This marks a departure from the previous tradition where the senior-most judge was automatically appointed to the position. The new amendment clearly stipulates that the parliamentary committee can nominate a Chief Justice with a two-thirds majority, ensuring that no government with a simple majority can unilaterally install a Chief Justice of its choosing.
Objections to Justice Yahya Afridi’s Appointment
Critics of Justice Yahya Afridi’s nomination argue that he was not the senior-most judge, which violates the long-standing principle of seniority in judicial appointments. Before this amendment, it was customary for the Supreme Court’s senior-most judge to be appointed as the Chief Justice. However, the amendment has paved the way for the parliamentary committee to exercise its discretion, raising questions about the sanctity of seniority in judicial appointments.
Has Seniority Always Been Respected in Judicial Appointments?
The debate over seniority raises an important question: has the judiciary consistently upheld the principle of seniority? A closer look at past appointments from the high courts to the Supreme Court reveals a pattern of disregarding seniority, often without providing any formal justification.
Chief Justices of high courts have frequently been overlooked for Supreme Court appointments, while their juniors have been promoted instead. This trend has continued for years, and today, a significant number of junior judges hold positions in the Supreme Court. If it has been acceptable to ignore seniority for appointments to the Supreme Court, it begs the question: why is seniority suddenly considered sacred when appointing the Chief Justice?
Double Standards in Seniority?
The inconsistency is not limited to Supreme Court appointments. Recently, in the Lahore High Court, the judiciary itself disregarded the principle of seniority when appointing its Chief Justice. In that instance, the judge ranked third in the seniority list was appointed as Chief Justice, while two senior-most judges were overlooked. This decision was made by the Judicial Commission without any influence from parliament or pressure from the government.
If the judiciary can overlook seniority in appointing high court Chief Justices, why can’t the same be applied to the Supreme Court? The argument that seniority should be upheld only for the appointment of the Chief Justice of the Supreme Court seems inconsistent, especially when the principle has already been ignored in several other instances.
The Broader Issue of Judicial Appointments
The principle of seniority, it seems, is not uniformly applied across the judiciary. The recent amendment suggests that parliament has recognized this inconsistency. By requiring a two-thirds majority for the nomination of the Chief Justice, the amendment seeks to ensure that judicial appointments are not influenced by political interests and that the selection process becomes more transparent and democratic.
Moreover, the judiciary itself has not adhered strictly to seniority in making its own appointments. This undermines the argument that the Chief Justice must always be selected based on seniority. If seniority was truly a sacred principle, it should have been consistently followed in all judicial appointments, from high courts to the Supreme Court.
A New Chapter in Judicial Appointments
The recent constitutional amendment represents a significant shift in how the Chief Justice of Pakistan is appointed. It reflects an effort to introduce more checks and balances in the system and prevent any one party from having undue influence over the judiciary. However, the debate over seniority highlights the complexities of judicial appointments in Pakistan and raises important questions about fairness and transparency in the process.
In the end, the principle of seniority either applies universally or not at all. Parliament’s recent actions seem to signal that seniority, while important, is no longer the sole determinant in judicial appointments. As the judiciary continues to evolve, it remains to be seen whether this new approach will bring about positive changes or further complicate the delicate balance of power between the judiciary and parliament.
By introducing the condition that the top three candidates be considered for appointment, parliament has made a move to ensure that future appointments are made with greater accountability. However, whether this new system will succeed in creating a more equitable and transparent judiciary remains to be seen.