Constitutional Tug of War: Who Should Appoint Pakistan's Judges?

Part 1: The Rope

As Hamilton put it in The Federalist Papers:

“Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”[1]

For centuries, constitutional thinkers have regarded an independent judiciary as indispensable to the rule of law and the separation of powers. If judicial independence is to be meaningfully protected, it begins with one constitutional question: who decides who sits within the courts? The answer lies in a state's judicial appointment mechanism. Yet judicial independence has never been absolute. As captured by Daniel Brinks and Abby Blass:

“Courts are never independent if by that we mean they are fully insulated from their social and political context; and they are never powerful if by that we mean that they can produce results without the cooperation of outside social or political actors.”[2]

This piece therefore contends that the question is not whether judges or politicians should appoint judges. Rather, it is how constitutional design can ensure that judicial appointments are informed by judicial expertise, independent perspectives, and insulated from the dominance of any single institution.

Part 2: The Opposing Pulls

This land’s constitutional fight on judicial appointments began before the land was given a name. Under the Government of India Act 1935, judicial appointments remained firmly within the control of the colonial executive. Decades later, the Draft Constitution of 1954 was Pakistan's first attempt to constitutionally balance executive appointment with judicial participation. While the President formally appointed judges, appointments were to be made upon the recommendation of the Chief Justice.

“The Chief Justice of Pakistan shall be appointed by the President and the other Judges shall be appointed by the President in accordance with the recommendation of the Chief Justice.”[3]

“A Judge of a High Court shall be appointed by the President in accordance with the recommendation of the Chief Justice of Pakistan and the Chief Justice shall, before making a recommendation for the appointment of a Judge other than a Chief Justice, consult the Chief Justice of the High Court concerned.”[4]

The subsequent developments of the Constitutions of 1956 and 1962 both presented the same idea of consultation with the Chief Justice. Even the original Constitution of 1973 did not include a legal definition of consultation. Article 177 stated:

“1. The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.”

The provision also set out an eligibility criteria:

“2. A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and,
a. has for a period of, or for periods aggregating, not less than five years been a Judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or
b. has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).”[5]

Article 193 dealt with the appointment of High Court judges wherein:

“1. A Judge of a High Court shall be appointed by the President after consultation,
a. with the Chief Justice of Pakistan;
b. with the Governor concerned; and
c. except where the appointment is that of Chief Justice, with the Chief Justice of the High Court.”[6]

The President remained the formal appointing authority, while the Chief Justice of Pakistan, the relevant Governor, and, for puisne High Court appointments, the Chief Justice of the concerned High Court participated through consultation. At that stage, the Constitution did not expressly state that judicial opinion was binding. This gap became the central issue in Al Jehad Trust. The landmark judgement provided the meaning and nature of the word “consultation” that had been used in all previous constitutions:

“‘Consultation’ in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive.”[7]

The judges further explained that the executive cannot ignore judicial opinion and that consultation is absolutely mandatory:

“If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter.”[8]

“Consultative process envisaged in the above-noted provision is mandatory and valid appointment of a Judge or his confirmation cannot be made without resorting to consultative process.”[9]

Furthermore, it was held that the effect of any appointment without consultation would be deemed unconstitutional and, therefore, invalid:

“Consultative process is mandatory and without it no appointment/confirmation can be made. It must follow that in absence of consultation as contemplated and interpreted the appointment/confirmation of a Judge in the superior Court shall be invalid.”[10]

It was stressed that since the Chief Justice of Pakistan, as head of the judiciary, holds a certain expertise regarding the suitability of candidates, it is more than important for his views on appointments to be paid heed to.[11] The court also held that in case of disagreements, the executive must record their reasons for going against the advice of the Chief Justice.

The choice before Pakistan is often reduced to a misleading binary: either judges appoint judges, or politicians do

The Supreme Court, therefore, made the executive discretion of the President almost entirely ineffective. In an effort to dilute the unchallenged powers of the judiciary in the appointment process, Parliament passed the 18th Amendment in 2010. Accordingly, the cases of appointment in the superior courts were to be processed through two stages. The first was the Judicial Commission (JC), headed by the Chief Justice of Pakistan and comprising senior judges of the Supreme Court (two), Chief Justices and senior judges of the High Courts (two), the Attorney General (one), Federal and Provincial Law Ministers (one), and representatives of the Federal and Provincial Bar Councils (one). The JC was to nominate judges for each vacancy. The nominations were then forwarded to the second forum, the Parliamentary Committee (PC), for confirmation. The PC comprised eight members, four from the National Assembly and four from the Senate, split equally between the Treasury and Opposition Benches. All names confirmed by the PC were to be forwarded to the President through the Prime Minister for appointment.

The 18th Amendment was challenged before the Supreme Court on the grounds, amongst others, that the new appointment process infringed upon the independence of the judiciary. The Supreme Court, in an unprecedented move, admitted the petition for hearing before the full court.[12] The Court gave advice on how to modify the 18th Amendment to make it conform to the Constitution, and referred the matter back to Parliament. However, the tone and tenor of the Court proceedings and order implied that it was not within Parliament’s power to reject the Court’s advice. The Court opined:

“We had two options: either to decide all these petitions forthwith or to solicit, in the first instance, the collective wisdom of the chosen representatives of the people by referring the matter for reconsideration. In adopting the latter course, we are persuaded primarily by the fact that institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate.”[13]

The Court made two substantive suggestions. Firstly, the provisions may be amended to increase the number of the ‘most senior judges’ of the Supreme Court in the JC’s membership from two to four. Secondly, if the JC’s recommendation in favour of a candidate for judgeship was not accepted by the PC, the latter was required to give sound reasons for its decision and refer the matter to the JC for reconsideration. If, upon considering the PC’s reasons, the JC stuck to its original recommendation, the latter became final, and the President was bound to make the appointment accordingly. The obvious implication of these suggestions was that the judges would now have an overwhelming majority of eight out of the total eleven members in the JC. Additionally, the JC would have the power to overrule the PC; a very clear step backwards in the direction of the pre-18th Amendment situation. Parliament nevertheless complied, and the suggested amendments were made and incorporated in the 19th Amendment. The effect of this was tested in the Supreme Court in 2011 when it overruled a decision of the PC; the Court held that ‘the technical evaluation of a person’s calibre as a Judge has to be made by the [Judicial] Commission, and once evaluated the recommendations of the Commission are to be looked (sic) as one.’[14]

Having shifted the rope decisively towards the judiciary, the Twenty-sixth Amendment sought to pull it back towards elected institutions, reopening the debate over where the constitutional balance ought to lie. The constitutional provisions governing judicial appointments in the Constitution (Twenty-sixth Amendment) Act 2024 were primarily the amendments to Articles 175A, 177, 179, and 193.

"The Commission, by the majority of its total membership, shall nominate one person for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be, to the Prime Minister who shall forward the same to the President for appointment."[15]

Before the 26th Constitutional Amendment, the JCP comprised a majority of judges. The amendment changed the composition of the JCP to also include two members of the National Assembly, two members of the Senate, and one woman or non-Muslim member, to be nominated by the Speaker of the National Assembly. The Law Minister, the Attorney General of Pakistan, and a representative of the Bar were already members of the JCP and remained so. The 26th Constitutional Amendment amended the Constitution to give this authority to a political body, namely a “Special Parliamentary Committee” (SPC), consisting of eight members of the National Assembly and four members of the Senate. The SPC was empowered to nominate the Chief Justice of Pakistan from among the three most senior Supreme Court judges.

Perhaps the strongest pull was made via the 27th Amendment. The most fundamental change brought by the 27th Amendment was the establishment of a new apex court of Pakistan: the Federal Constitutional Court (FCC). The FCC holds jurisdiction to decide disputes between any of Pakistan’s governments and adjudicate matters of public interest involving the enforcement of “fundamental rights”. The FCC also has the power to call for the record of any case that may involve a substantial question of law related to the interpretation of the Constitution of Pakistan, and make orders in the case. The FCC’s judgements, insofar as they decide a question of law, will be binding on all courts, including the Supreme Court. Following the amendment, the Supreme Court will now effectively be an appellate court only in matters that do not involve interpretation of the Constitution of Pakistan.

The amendment does not provide any criteria on which the appointments will be made and does not require reasons to be given for the appointments, apart from general qualifications necessary to be considered a judge of the FCC. The appointments are also of concern as the Chief Justice of the FCC and the senior-most judge of the FCC will also be members of the Judicial Commission of Pakistan, the body responsible for judicial appointments, and the Supreme Judicial Council, the body responsible for judicial accountability—an arrangement inconsistent with the principle of judicial independence. The 27th Amendment also changed the judicial members of the JCP. They now include: the Chief Justice of the FCC, the Chief Justice of the SC, the next senior-most judges of the FCC and the SC each, and a judge of the SC or FCC jointly nominated by the Chief Justice of the FCC and Chief Justice of the SC. The other members remain the same.

The JCP’s composition remains a concern, especially as at least two of the judicial members (the Chief Justice of the FCC and a judge of the FCC) will initially be executive appointments. Furthermore, the JCP’s composition allows for direct political influence over it, as the JCP’s judicial members are a minority. For the appointment of Supreme Court and FCC judges, for example, only five out of 13 JCP members are required to be judges (namely, the Chief Justice of the FCC, the most senior judge of the FCC, the Chief Justice of the SC, the senior-most judge of the SC, and a judge of the SC or FCC jointly nominated by the Chief Justice of the FCC and Chief Justice of the SC).

Furthermore, it altered Article 200 of the Constitution of Pakistan 1973, which relates to the transfer of judges of the High Courts. Before the amendment, the President of Pakistan had the power to transfer judges from one High Court to another in consultation with the Chief Justice of Pakistan and the chief justices of the High Courts to and from which the transfer was being made. The consent of judges was necessary for them to be transferred. The requirement of consent has been removed.

Article 200 fails to provide for any basis on which the JCP will decide when judges should be transferred, and there is no requirement to establish a mechanism with clearly defined criteria and objectives to guide recommendations for transfer. This arbitrary system allowed senior judges such as Islamabad High Court judges, including Justice Mohsin Akhtar Kayani and Justice Babar Sattar, to be transferred to the Lahore High Court (LHC) and the Peshawar High Court (PHC), respectively.

Following the passage of the amendment, several senior judges resigned, citing it as an "assault on the constitution" and a threat to judicial independence. Notable resignations included Supreme Court Justices Mansoor Ali Shah and Athar Minallah, as well as Lahore High Court Justice Shams Mehmood Mirza.

Part 3: How the Rope is Held Elsewhere

a. United Kingdom

The modern system of judicial appointments in England and Wales was fundamentally transformed by the Constitutional Reform Act 2005, which removed the historic dominance of the Lord Chancellor and replaced it with an independent, merit-based appointments framework. The centrepiece of this reform is the Judicial Appointments Commission (JAC), an independent statutory body responsible for selecting candidates for most judicial offices.[16]

Appointments are made through an open and competitive process. Candidates are assessed solely on merit and must satisfy the statutory requirement of good character. The Commission is also under a statutory duty to encourage diversity in the pool of applicants without compromising merit as the governing criterion. Before recommending a candidate, the JAC undertakes statutory consultation with experienced judicial office holders where required by law.[17]

Although the Lord Chancellor retains a limited constitutional role, that role is tightly circumscribed. Rather than selecting judges, the Lord Chancellor may accept, reject, or require reconsideration of recommendations only within the statutory framework established by the Constitutional Reform Act. The executive therefore no longer exercises primary control over judicial appointments.

The strength of the British model lies in its institutional independence. Appointment decisions are removed from ordinary political processes while remaining publicly accountable through transparent procedures.

b. Germany

Germany adopts a markedly different constitutional philosophy. Rather than insulating judicial appointments entirely from politics, it disperses political influence across multiple constitutional institutions. The Federal Constitutional Court (Bundesverfassungsgericht) consists of sixteen judges divided equally between two Senates. Pursuant to Article 94 of the Basic Law, one half of the judges are elected by the Bundestag and the other half by the Bundesrat, ensuring participation by both the federal legislature and the governments of the Länder. Appointments require a two-thirds majority, compelling broad political consensus rather than simple majority control.[18]

Judges serve a single twelve-year, non-renewable term and are subject to a mandatory retirement age. The prohibition on reappointment is a deliberate constitutional safeguard, insulating judges from any incentive to seek favour with future appointing authorities. Professional eligibility requirements further ensure that appointments are confined to highly qualified jurists drawn from the judiciary, legal profession, and academia.

The German model demonstrates that political participation is not inherently incompatible with judicial independence. Its stability derives from constitutional safeguards that prevent any single institution or governing majority from monopolising appointments. If Pakistan is to exist with an FCC, Germany offers an influential example of how constitutional adjudication may coexist with a politically participatory yet structurally restrained appointments process.

Part 4: Reweaving the Rope: A Way Forward for Pakistan

The choice before Pakistan is often reduced to a misleading binary: either judges appoint judges, or politicians do. Pakistan’s experience shows the danger in both extremes. Executive control threatens the institutional independence of courts, particularly where judges must later decide cases involving the same government that influenced their appointment. Yet judicial self-selection is not a complete answer. It can concentrate power within a small circle whose deliberations remain largely invisible to the public. Some jurists defend decisive judicial participation because those who work within the courts are best placed to assess legal ability, temperament, and integrity. Others have warned that vesting ultimate authority in the Chief Justice produces opacity and argue instead for a transparent, shared process based on merit.[19]

The Twenty-seventh Amendment moved Pakistan in the wrong direction by enlarging political influence over appointments at the very moment when constitutional adjudication was transferred to a newly created Federal Constitutional Court. The concern is not that parliamentarians participate at all. Democratic participation can lend legitimacy to a court entrusted with deciding questions that shape the political order. The deeper problem is that, within Pakistan’s political environment, parliamentary membership does not necessarily produce institutional pluralism. Party discipline, coalition bargaining, and executive influence can collapse formally separate voices into a single political bloc. The Human Rights Commission of Pakistan and the International Commission of Jurists have accordingly treated the post-amendment framework as a serious threat to judicial independence rather than a neutral redistribution of constitutional authority.[20]

Neither Britain nor Germany supplies a model that Pakistan can simply import. The British Judicial Appointments Commission appears attractive because it relies on open applications, structured assessment, and published criteria. But the model rests upon institutional habits Pakistan does not yet possess: stable conventions, a professional civil service, comparatively restrained executive conduct, and general acceptance that an appointments body will not be manipulated whenever its recommendations become inconvenient. Even in Britain, formal independence has not eliminated concerns about an unrepresentative judiciary and the persistence of professional and social barriers within ostensibly meritocratic selection.[21]

Germany presents the opposite lesson. Its Constitutional Court judges are elected through political institutions, but the two-thirds threshold, division between the Bundestag and Bundesrat, federal dispersion of power, and non-renewable tenure are intended to prevent one governing coalition from controlling the Court. Yet the system is neither apolitical nor frictionless. Candidates are negotiated by political parties, appointments may be delayed by ideological disputes, and the failed nomination controversy of 2025 showed how public campaigns and coalition politics can penetrate a process often praised for consensus.[22] Pakistan therefore cannot borrow Germany’s political participation while omitting the structural restraints that make it tolerable.

A workable Pakistani model should begin with judicial leadership but not end with a judicial monopoly. Judges should retain a clear majority within the Judicial Commission, but the remaining seats should not simply be handed to serving ministers and party nominees. They should include independently selected representatives of the Bar, legal academics, constitutional scholars, and persons with established work in human rights, public administration, and legal education. Such members would widen the Commission’s understanding of merit beyond courtroom visibility and personal familiarity. This would also answer the concern, repeatedly raised in reform discussions, that appointments must consider diversity, integrity, professional competence, and representation from both the Bar and the judicial service.

The process itself matters as much as composition. Vacancies should be publicly notified; eligibility and selection criteria should be settled in advance, and the Commission should publish concise reasons for its selections. Political members should be prohibited from voting under binding party instructions, and no appointment to the Federal Constitutional Court should be possible through a bare governmental majority. Judges should receive secure, non-renewable terms and should not depend upon the appointing authorities for extensions, transfers, or subsequent preferment.

Pakistan does not need to decide which institution should finally win the tug of war. It needs an appointments process in which no institution can win alone. The judiciary must supply professional judgement, representative institutions must supply democratic legitimacy, and independent members must supply perspectives that neither branch possesses. Only then can the constitutional rope cease to be pulled between competing centres of power and become a bridge between independence, accountability, and public trust.

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