With less than ten days remaining until Chief Justice of Pakistan Qazi Faez Isa officially retires (per current laws), the government remains conspicuously silent on notifying his potential replacement, senior puisne judge, Justice Mansoor Ali Shah.
On the one hand, the government's silence on this subject continues, while on the other, a special bipartisan parliamentary committee deliberates on the finer points of a constitutional amendment which is likely to stipulate a three-year fixed term for the head of a new Federal Constitutional Court with incumbents allowed to continue serving the new court until the age of 68. As a result, questions are being raised about why a notification on Justice Mansoor Ali Shah's appointment as the next Chief Justice of Pakistan has not been issued thus far.
It is pertinent to mention here that in the past nine appointments of the Chief Justice of Pakistan, only one judge was notified with less than ten days remaining in the retirement of the incumbent chief justice - Justice Nasir-ul-Mulk. Chief Justice Isa was notified as the top judge in the country a staggering 88 days in advance.
Observers said that the notification of a new chief justice this year is directly linked to the fate of the constitutional amendment. If passed, the amendment could profoundly impact the post of chief justice of the Supreme Court. They suggested that it is likely that the notification of the new chief justice of the Supreme Court could be issued once the government passes the constitutional amendment. The constitutional amendment to bring reforms in the judiciary is expected to materialise soon after the Shanghai Cooperation Organisation (SCO) Summit concludes, observers said.
Senior puisne judge, Justice Shah, is viewed as a proponent of Parliament's supremacy. However, the government is said to have some reservations over him after some of his recent rulings provided inordinate relief to the Pakistan Tehreek-e-Insaf (PTI), which many in the legal fraternity consider was beyond his legal remits.
Considering Justice Shah's recent judgments, including the grant of bail to PTI founder Imran Khan in the cipher case and then awarding the reserved seats case in PTI's favour, as well as his fierce reservations on the Practice and Procedure Amendments Ordinance, there is strong apprehension over his alleged 'unpredictability' in powerful circles.
Observers believe that passing the constitutional amendments would open further avenues for the government to consider other judges for the slot of chief justice. They added that the constitutional amendment requires consensus among all parliamentary political parties.
Although different political parties have presented their proposals and ideas on the constitutional amendment, they do not specifically address the government's proposal to stipulate a new process for appointing the chief justice of the Supreme Court.
The government's draft proposes the removal of the clause, which mandates that the senior-most judge take over as the new Chief Justice of the Supreme Court upon the retirement of the incumbent. However, to maintain the spirit of the judiciary's independence, the government's draft also proposes that a parliamentary committee will recommend one of the three senior-most judges to the prime minister, who will then forward his recommendation from amongst the names to the President for approval.
The parliamentary committee shall have proportion-based representation from different parties. Moreover, the retirement age for judges of the Supreme Court will remain at 65 years, with the Chief Justice's tenure capped at three years.
Currently, the next three senior-most judges of the Supreme Court include Justice Shah, Justice Munib Akhtar and Justice Yahya Afridi. Legal wizards say that if the constitutional amendment is introduced as per the government's draft, then there is a chance that Justice Yahya Afridi could be appointed as the Chief Justice of the Supreme Court while Chief Justice Isa will be handed reins of the Federal Constitutional Court (FCC).
At that point, they said it would be the discretion of Justice Shah and Justice Akhtar to resign for being superseded.
They further noted that the current leadership in the Supreme Court supports the supremacy of the Parliament and its right to make laws. Consequently, it is likely to shield Parliament from the interventions of high courts on constitutional amendments since a petition challenging the proposed amendments has been fixed for a hearing on October 17 despite being pending in the Lahore High Court (LHC).
PTI-backed and former Supreme Court Bar Association President Abid Shahid Zuberi had moved a petition before the apex court in September to restrain the government from tabling the constitutional amendment before Parliament. CJP Isa will head a three-judge bench comprising Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan to hear the matter.
It is pertinent to mention here that the Sindh High Court (SHC) has already dismissed the petitions seeking a declaration from the court to bar the Parliament from introducing amendments and making the proposal public.
SHC's Chief Justice Muhammad Shafi Siddiqui observed in his written order: "We are afraid that the representatives of the public are sitting in the National Assembly/ Senate with their voice."
"We have not been able to articulate the proposition of the petitioners that the proposed amendments be made available to the public as we do not find any article in support thereof," observed SHC.
"Legislative procedure is provided in Articles 70 through 77, and the submissions are devoid of such frame. The courts have been restrained from interfering in such matters and in particular in respect of the issue of legislation (competence of which otherwise is not denied), unless it is seen to be demonstrably unconstitutional."
"Since it has not yet surfaced as an act of the Parliament, the process of adjudging it either constitutional or unconstitutional cannot be triggered," observed the SHC.