PM aide suggests fixing CJP’s tenure

ISLAMABAD: With the federal government contemplating amending the laws related to senior judges’ appointment, Adviser to the Prime Minister on Political and Public Affairs Rana Sanaullah on Saturday suggested fixing the term of the chief justice of Pakistan.

Speaking to host Shahzad Iqbal on the Geo News programme ‘Naya Pakistan’, the PML-N Punjab chapter president said: “The term of the chief justice should be fixed. There is no institution [in the country] whose head’s tenure is not fixed.” Rana Sana added that in the past there had even been CJPs who had been in office for a mere 14 days.

The PM’s adviser’s statement came a day after Law Minister Senator Azam Nazeer Tarar hinted at bringing constitutional amendments to change the traditional approach to selecting judges for the Supreme Court as well as high courts, saying the government wanted to establish a “balance” in the system.

The law minister had made the remarks as a meeting of the Judicial Commission of Pakistan (JCP) was held on Friday with CJP Isa in the chair to discuss proposed amendments to its 2010 rules. The law minister was among the attendees.

The amendments are reportedly aimed at ending the automatic elevation of high court chief justices to the top court and the appointment of the most senior judge as the chief justice of high courts. In a statement, the federal minister had said that the status of the Parliamentary Committee on Judicial Appointments was not more than a “rubber stamp” following the 19th Amendment to the constitution.

Referring to proposals circulating on social media platforms about the chief justice’s term, the minister had commented that he would not “completely reject proposals regarding the tenure of chief justice.” In the 18th Amendment, there was a balance in the appointment of judges, the law minister added.

Meanwhile, a spokesperson for the Pakistan Tehreek-e-Insaf has criticised the government’s purported plan for “a person-specific constitutional amendment aimed at allegedly benefiting the incumbent chief justice of Pakistan”. The spokesperson vehemently opposed any such constitutional amendment regarding the appointment of judges to superior courts, asserting that it would be vigorously resisted at all levels.

The spokesperson alleged that Chief Justice Isa had purportedly undermined the independence of the judiciary and paved the way for undue interference by non-democratic forces. The PTI has also accused the government of extending the CJP’s tenure as a form of bribery, citing his alleged role in depriving a democratic party of its electoral symbol and mandate.

Emphasizing the collective nature of legislative decisions, the PTI spokesperson asserted that person-specific constitutional amendments contradict the spirit of Pakistan’s constitution, which prioritises the common good. The PTI has pledged to vehemently oppose such amendments through legal and democratic means.

The News also reached out to legal experts to see what they thought of the CJP’s tenure being of a fixed term. High court advocate and former faculty at LUMS Hassan Abdullah Niazi says that, while fixing the term of the chief justice “may appear to be innocuous, some arguing that it can give some administrative stability to the Supreme Court and its procedure, the timing and substance of the current proposal raises concerns for judicial independence.”

How does it do that? Niazi says if such a proposal were to be implemented it would essentially prevent judges seen as close to former CJ Bandial from becoming chief “because they will be forced to retire during the extended terms of their predecessors.” Calling such “manipulation to prevent certain judges from becoming chief” an attack on the independence of the judiciary, Niazi also adds that if such a proposal were to be implemented now and accepted by the current chief justice, “the perception of him being close to the government would become unavoidable, tarnishing in the public eye the image of the Supreme Court as an independent institution. The court must avoid this perception.”

Niazi also wonders why a need was felt to contemplate such a move since “fixing the term of the chief justice hasn’t been a key issue raised by the legal fraternity”. Emphasising that any such constitutional amendments would need an open, consultative process, he warns that “this secretive method, with the usual smoke and mirrors, will only feed speculation about the government’s motives.”

For Supreme Court advocate Basil Nabi Malik, although “the fixation of a tenure can be fruitful as in allowing any CJP to actually consider bringing in and following through on reform, it may also bring with it problems.”

These problems, says Malik, could include the issue of “impending extensions nearing retirement, or at least the talk of it. Such issues, if they do arise, shall impact the independence of an institution already plagued by polarization. Second, if a person is to be tenured as a CJP by way of an independent appointment, rather than elevation via seniority, it would cause further polarization and raise the possibilities of influence.” At the end of the day, per Malik, we should be “less worried about the fixation of a CJP’s term and more about the fixation of the CJP itself.”

Lawyer Abdul Moiz Jaferii feels that at the heart of the issue is the current dispensation’s “dual crisis of legitimacy”. He says that such a dispensation should “be wary of even regular legislation. And yet we have them thinking up a constitutional amendment.” The lawyer also warns that “any such attempt will suffer from a severe crisis of legitimacy”.

On whether the fixed term proposal can or should be tried, Jaferii says that any such amendments “should be made effective from when the most junior judge is elevated to the Supreme Court. And not anything that would affect current seniority. Because that would just smack of malafides.”