MPs pick third in line as CJP

The 26th Constitutional Amendment was enacted on Tuesday as the Special Parliamentary Committee nominated Justice Yahya Afridi as the next Chief Justice of Pakistan (CJP) with a two-thirds majority, marking the first instance of senior judges being bypassed for the top judicial post.

Several committee members, including Defence Minister Khawaja Asif, Law and Justice Minister Azam Nazeer Tarar, and Planning, Development, and Special Initiatives Minister Ahsan Iqbal, confirmed the news to the media right after the meeting, saying the decision was made with a two-thirds majority.

"With a two-thirds majority, Justice Yahya Afridi's nomination has been sent to the prime minister," Tarar told reporters after the meeting.

The change comes ahead of CJP Qazi Faez Isa's impending retirement on October 25.

Previously, Justice Mansoor Ali Shah, under the seniority principle, was in line to assume the post.

However, the game changed with the passing of the 26th Amendment, giving the Special Parliamentary Committee the final say in selecting the CJP from among the three most senior judges.

Despite Justice Shah being the most senior, followed by Justice Munib Akhtar and Justice Afridi, the committee threw its weight behind Afridi. Under the new amendment, the CJP will serve a three-year term unless he resigns, turns 65, or is removed in line with constitutional provisions.

The only potential complication left in the process of appointing the CJP could arise if Justice Afridi declines the position. In such a case, Article 175A of the Constitution mandates that the remaining judges among the three senior-most judges be considered.

If they also decline, the next most senior judge, even if not originally among the top three, will be nominated by the committee, and the process continues until a nominee is appointed as CJP.

With eight out of 12 votes, the PML-N, PPP, and MQM-P—all part of the PML-N-led ruling alliance—supported Justice Afridi's nomination, while one member from JUI-F dissented. PTI's three members had earlier announced a boycott of the committee meeting.

Article 175A, newly added to the Constitution, states that the CJP must be nominated by a Special Parliamentary Committee from among the three senior-most judges of the Supreme Court. Clause 3A of the article outlines that the 12-member committee will consist of eight members from the National Assembly and four from the Senate, with proportional representation based on their party strength in Parliament.

From the National Assembly, PML-N nominated Khawaja Asif, Ahsan Iqbal, and Shaista Pervaiz; PPP nominated Raja Pervaiz Ashraf and Naveed Qamar; PTI nominated Barrister Gohar, while SIC's Sahibzada Hamid Raza and MQM's Rana Ansar were also appointed. Senate members included PPP's Senator Farooq Hamid Naek, PML-N's Senator Azam Nazeer Tarar, PTI's Senator Syed Ali Zafar, and JUI-F's Senator Kamran Murtaza.

Despite PTI's boycott, the committee proceeded with deliberations and selected Justice Yahya with an 8-1 majority. Although the meeting was initially scheduled for 4 pm, it was postponed for a few hours to give PTI members a chance to participate.

A four-member subcommittee was formed, comprising Ahsan Iqbal, Rana Ansar, Raja Pervaiz Ashraf, and Kamran Murtaza, to negotiate with PTI. Despite holding a meeting at the NA speaker's chambers with Barrister Gohar, PTI remained resolute in its decision not to participate, following the party's political committee's directive.

Subsequently, the committee pressed ahead with the judicial appointment process. During the meeting, the secretary law and justice presented the profiles and qualifications of the nominated judges, which included their legal careers, educational backgrounds and timelines of their judicial appointments.

After reviewing the profiles, the committee approved Justice Afridi's nomination and forwarded his name to Prime Minister Shehbaz Sharif. Under the 26th amendment, PM Shehbaz will now send the name to President Asif Ali Zardari, who will confirm the appointment.

Apparently being tired of judicial overreach, this is the first time the Parliament is curtailing the judiciary's influence in political and governance matters—a power the courts have exercised expansively in recent years—by passing the 26th amendment with a two-thirds majority in both houses.

The appointment marks a significant moment in Pakistan's judiciary as, previously, the senior-most judge would automatically assume the position of CJP. Now the selection process for CJP has undergone reforms; three senior-most judges are shortlisted; the committee deliberates upon their names; and makes the final selection.

Observers note that the change is part of the government's broader effort to reform judicial appointments, sparking concerns over judicial independence. The concerns have emerged from the ruling alliance as well as an opposition party, JUI-F, decision to not only change the criteria for CJP's appointment but constitute constitutional benches in SC.

Through an amendment in Article 191-A, it is said that there shall be Constitutional Benches of the SC, which may comprise an equal number of judges from each province.

It adds that the most senior judge shall be the presiding judge of the Constitutional Benches. These benches will hear original, appellate and advisory jurisdiction of the top court, adding the bench shall not be less than five judges.