Much has already been said, and much is being said, about the merits and demerits of Justices Mansoor Ali Shah, Munib Akhtar and Yahya Afridi in the past few days. A lot of it is being said on social media, where anyone with a Twitter/X handle or YouTube channel and a reasonably large following gets to become an expert on legal and court matters.
We have heard that all three Supreme Court judges are Aitchisonians, two (Afridi and Akhtar) were head boys of their respective classes, and all three were very active in sports as well (Afridi also won the Best Sportsman award while Shah was the tennis captain and played at the national level), and so on and so forth. We have also heard that all three went to among the best universities in the world: Justice Afridi and Justice Shah to Jesus College and Downing College at Cambridge University respectively, and Justice Akhtar to Princeton University in the US.
Now that Justice Yahya Afridi has been chosen as the next Chief Justice of Pakistan by the Parliamentary Committee (8-1 in favour with the Jamiat Ulema-e-Islam Fazl (JUI-F) voting for Justice Mansoor Ali Shah, and the Pakistan Tehreek-e-Insaf (PTI) members boycotting the vote - and later the President notified his appointment), there is talk -- again on social media, and mostly among sympathisers and supporters of the PTI – that he may well turn it down, and Justice Shah may well become the next Chief Justice. One reason being put forward for such a consideration is that Justice Afridi is 59 years old, and if he becomes the Chief Justice, it will be till the age of 62 and he will still have another three years to go before he retires as a judge of the Supreme Court.
The constitutional amendment doesn’t say that if the judge who has been selected turns it down, then the post should be offered to one of the two other candidates, or that a new pool is to be drawn after including the next senior-most judge
To be honest, this is hardly a compelling reason for him not to take up the post. It is also wishful thinking and fails to understand how the chief justice is selected under the newly promulgated 26th Amendment. It’s not a revolving door or a process akin to admission in a college where if the first selected candidate doesn’t accept the offer, it is offered to other candidates.
The process envisages the selection of one individual as the next Chief Justice of Pakistan from a pool of candidates comprising the three senior-most judges of the Supreme Court. The constitutional amendment doesn’t say that if the judge who has been selected turns it down, then the post should be offered to one of the two other candidates, or that a new pool is to be drawn after including the next senior-most judge. Of course, this is not to say that a judge chosen from a panel of three senior-most judges may not turn the offer down, but the fact is that the selection from among the three is seen as final under the new law. In fact, on Wednesday (October 23) morning, state-owned Pakistan Television (PTV) reported that Justice Afridi will be taking oath as the next Chief Justice of Pakistan on Saturday, October 26, the day when the incumbent CJP Qazi Faez Isa turns 65 and retires.
What, perhaps, many are missing in this whole process and debate is that the reason for the amendment was not necessarily to keep any or all judges in check but to push for the supremacy of Parliament, and to reinforce the boundaries of the executive and legislature vis-à-vis the judiciary. For far too long, it was seen that the judiciary, especially the superior courts, were encroaching on matters that were purely the domain of the executive or the legislative, with even elected prime ministers sent packing through dubious decisions, decisions that some of the judges - upon retirement and in retrospect – later regretted.
The responsibility before the judiciary is to dispense justice, in particular to ordinary Pakistanis who approach it seeking redressal of crimes and acts committed against them, and not to decide for other branches of government what they should be doing, or do their work for them.