Judicial independence, seniority and political influence – these issues seem to be coming up again and again and again ever since issues cropped up within the superior judiciary a couple of years back. The ongoing saga these days is focused on the controversy surrounding the Islamabad High Court (IHC) and the transfer of Justice Sarfaraz Dogar – presumably paving the way for him to be the next chief justice of the IHC. For many within the judiciary, seniority is a sacred principle, one that ensures both continuity and institutional integrity and this way of reshuffling has sparked resentment. Some judges have argued that transferred judges should take a fresh oath and have their seniority reset to ensure fairness in judicial appointments. In the estimation of legal experts too, a judge transferred from one high court to another to bypass the seniority principle and assume the top position is unwarranted and unjust. The five IHC judges who filed a representation against the elevation of Justice Dogar contend that allowing such a transfer could set a dangerous precedent, undermining both the principle of seniority and the independence of the judiciary. With the rejection of their contention, it seems Justice Dogar’s way to CJ-ship stands clear. But this latest measure has further fueled the unrest within the judiciary. Not only that, we now have lawyers taking to the streets in protest, particularly in light of the Judicial Commission of Pakistan’s (JCP) recent appointment of six new judges to the Supreme Court. Legal experts and bar associations have expressed concerns that these appointments are politically motivated and designed to serve certain political interests.
As legal experts debate the constitutional validity of the transfer system as well as the fallout of the 26th Amendment, many fear that bypassing established norms could create opportunities for political interference in the judiciary. The growing division within the legal community also raises questions about the transparency and fairness of the judicial appointment process. While some argue that the elevation of judges should strictly follow seniority and established practices, others point to the need for flexibility in the appointment process to ensure the best candidates are chosen for the judiciary’s leadership roles. The new rules introduced by the JCP, allowing a broader panel of senior judges to be considered for the chief justice role, are seen by some as a necessary reform, but by others as a potential loophole for circumventing established norms.
It is now becoming very clear that we have a crisis on our hands with a squabbling judiciary. One hopes the realisation hits soon that internal disputes must be resolved through established processes rather than public spectacles. The airing of grievances through open letters and protests, while bringing attention to legitimate concerns, further end up fracturing the institution’s credibility. While the rejection of the IHC judges’ representation has provided temporary clarity, it is not a permanent solution. The road ahead will require dialogue, patience and a commitment to rule of law. The judiciary has to figure out how to navigate its internal conflicts while safeguarding its autonomy and maintaining the trust of the public. For its part, the government needs to decide once and for all whether it is even committed to the idea of separation of powers. The optics are ugly all around and if this crisis is not handled with care, its repercussions could extend far beyond the courtroom.