ISLAMABAD - As history is in the making after 26th constitutional amendment passed by the parliament, another chapter in the judicial history of Pakistan would be written by senior-most judges of the Supreme Court as their fate is hanging in the balance of ‘legality and morality’.
The said 26th constitutional amendment changes the method of the appointment of chief justice of Pakistan (CJP); whereas earlier the senior most judge of the SC was automatically appointed as the CJP, now a Special Parliamentary Committee will pick one name from the three senior-most judges of the SC.
The committee will suggest one name to the prime minister, and subsequently the president will appoint him on the advice of PM.
Though, the new legislation is crystal clear about the appointment of new CJP amongst three senior most judges but at the same time it is entirely silent regarding the future of remaining two judges, who would be ignored by the special parliamentary committee.
The concerned circles in background discussion were unclear and unpredictable in this regard as according to them, now it is a question of morality as the law is silent.
They argue as it seems most likely if the senior-most judge alone or next judge in seniority along with him is superseded by the committee, then what decision they will make is right now a mystery.
At present, the most affected judge is puisne judge Justice Mansoor Ali Khan, who was set to become CJP on 26th October 2024 prior to the recent constitutional amendment and he is to retire on 27th November 2027 after remaining top judge for three years and one month.
However, even if he is selected which is quite unlikely, it would not be a big deal for him but his tenure would be reduced for about a month as a term of three years is fixed as tenure of CJP in new legislation. His selection could intact the seniority of two other judges but it seems impossible.
The other two judges, who had also ‘guaranteed’ elevations as CJPs are now in the danger zone as well but unlike the puisne judge because if selected one by the committee, the judge would get a full three years tenure as earlier they were about a year to remain in the highest judicial office.
If the 26th constitutional amendment could not prevail, Justice Munib Akhtar was next in line to become CJP on 28th November 2027 and set to retire on 13th December 2028 while after his retirement Justice Yahya Afridi was to become CJP as per seniority and he was to remain in office till 22nd January 2030.
Interestingly, the amendment put two old friends in front of each other in the race to become CJP as Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Athar Minallah had jointly established Afridi, Shah and Minallah law firm in 1997 but later all three were elevated into higher judiciary one after another.
Though, circles concerned believed that there are very minor chances that a judge from three senior most judges would refuse to become CJP but to avoid any complexity, the amendment provides in that case a next senior judge would become part of the panel.
Now, a new precedent would be settled by the ‘superseded judges’ in coming days either by resigning from the office like other institutions on moral grounds or sticking to the office taking advantage of the silence of the Constitution.