The recent appointment to the Supreme Court was met with unanimous approval and proceeded smoothly without any previous deadlock that had plagued earlier appointments. However, the Supreme Court still lacks a consensus-based mechanism for selecting a judge for the remaining seat, which could potentially lead to further divisive discussions within the court and the legal community.
During Chief Justice Umar Ata Bandial’s tenure, five seats remained vacant for an extended period due to controversies surrounding the appointment process over the past five years. With the elevation of Justice Hilali, senior lawyers believe that none of the judges’ factions within the Supreme Court hold a majority. Additionally, the relationship between the current Chief Justice and influential circles has weakened, placing senior puisne judge Justice Qazi Faez Isa, who has already been designated as the next Chief Justice, in an advantageous position.
Furthermore, it has been revealed that Chief Justice Bandial had expressed an interest in nominating Chief Justice Ahmed Ali Sheikh of the Sindh High Court as a Supreme Court judge. However, the majority of the Judicial Commission of Pakistan (JCP) is unwilling to support his appointment due to his nearing retirement. Justice Sheikh has served as the Chief Justice of the Sindh High Court for almost six years. It is worth noting that the situation in the Sindh High Court intensified due to the promotion of junior judges to the Supreme Court, causing frustration among senior judges who felt overlooked.
It remains to be seen whether the incumbent Chief Justice will address the issue of the remaining vacant seat or if the next Chief Justice, Qazi Faez Isa, will take it upon himself to resolve the matter.
In recent years, there have been indications of judicial politics influencing the appointment of judges to superior courts and the composition of benches in high-profile cases. Some judges have consistently urged Chief Justice Bandial to regulate his discretionary powers regarding the formation of special benches, establish criteria for appointments, and convene a full court to handle important matters.
Hafiz Ahsaan Ahmad Khokhar, an observer of ongoing judicial politics, emphasizes that judicial independence is a fundamental aspect enshrined in the 1973 Constitution to ensure a fair administration of justice. However, he notes that the confidence, credibility, and trust of litigants and citizens in judicial institutions, particularly the Supreme Court, are vital for a vibrant judicial system.
He expresses concern over the unusual and unprecedented differences of opinion among Supreme Court judges in recent months, both on internal matters and while working on judicial cases. This situation has hindered the court’s effective functioning and raised worries among the general public, lawyers, and stakeholders.
According to Khokhar, it is healthy for judges to have divergent opinions on constitutional and legal issues while writing judgments. However, the reported differences in opinions among judges, both publicly and internally, have resulted in unacceptable criticism and have undermined the judiciary.
He believes that the superior judiciary should set an exemplary role model for the country by serving as a guardian of the constitution, upholding the rule of law, promoting constitutional supremacy, and delivering prompt justice. Unfortunately, the emergence of dissenting opinions among judges, expressed through various judgment notes and reported in the media, is unprecedented and has created opportunities for others to exploit the situation. Additionally, laws regulating the internal workings of the Supreme Court have been enacted, which goes against the spirit of preserving the independence of the institution as outlined in Article 191 of the Constitution.
Khokhar emphasizes the importance of convening an early full court meeting in the Supreme Court to carefully consider the formation of benches and establish criteria for the selection of cases under Article 184(3) of the Constitution. He believes that the opinions expressed by other judges, both orally and in writing, should be taken seriously as they contribute to the institution’s best interests. He emphasizes the need for unity within the body of Supreme Court judges to uphold the court’s integrity and fulfill its role effectively.