26th Amend fuels 'court packing' concerns

Legal fraternity wary of executive's growing role in picking 'like-minded' judges

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ISLAMABAD:

With the 26th Constitutional Amendment in play, the executive has seized the reins of judicial appointments, fuelling concerns of "court packing" in the superior judiciary.

The Judicial Commission of Pakistan (JCP) has been reconstituted under the controversial constitutional tweak, shifting the balance of power firmly in favour of the government, which now calls the shots in judicial selections.

Decisions are now taken by majority vote, giving the executive a free hand in shaping the judiciary.

This is a sharp departure from the past practices as previously, under the 18th Amendment, the majority within the JCP consisted of judges, ensuring greater judicial independence.

However, the current alignment of the PML-N, PPP and the Pakistan Bar Council's Independent Group has led to a unified front within the commission, ensuring smooth sailing for the government's judicial picks, with the blessing of 'powerful circles'.

So far, the JCP has approved the appointments of 12 judges to the Sindh High Court (SHC), three to the Balochistan High Court, and two to the Islamabad High Court (IHC). Judges have also been selected for constitutional benches in the Supreme Court and the SHC.

Legal experts believe the government has successfully installed a majority of its preferred judges in the SHC and IHC. However, judicial members within the JCP remain divided.

Notably, Justice Aminuddin Khan, a JCP member, did not support Chief Justice of Pakistan (CJP) Yahya Afridi's proposal to nominate all apex court judges for the constitutional bench. Instead, with the backing of executive and bar representatives, he became the first head of the constitutional bench.

The next JCP meeting, scheduled for February 1, will consider nominations for Peshawar High Court judges, followed by a session on February 7 to review Lahore High Court nominations.

Moreover, on February 11, the commission will appoint eight Supreme Court judges – a process expected to once again favour executive-backed nominees.

Meanwhile, it emerged that one or two judges from provincial high courts may soon be transferred to the IHC to facilitate the appointment of a new IHC chief justice after the expected elevation of current IHC CJ Aamer Farooq to the top court.

The executive is expected to ensure a like-minded nominee takes the position.

The government remains uneasy about six IHC judges who previously wrote to the Supreme Judicial Council (SJC), seeking guidance on alleged agency interference in judicial functions concerning high-profile cases. None of these judges are expected to be considered for the next IHC chief justice.

Prior to the 26th Amendment, the chief justice played a dominant role in the judicial appointment process, a system established under the 18th Constitutional Amendment.