Pakistan’s new Chief Justice has a ‘spotless career’. His appointment is still controversial

The legal fraternity and the opposition in Pakistan are not against new Chief Justice Yahya Afridi. They object to the constitutional amendment that caused his appointment.

Shangla Bar Association presenting an award to Justice Yahya Afridi (on the right) who has now been appointed as the Chief Justice of Pakistan | Sultan Rome, Twitter

New Delhi: Two days after the hasty and controversial 26th Constitutional Amendment was passed, the Pakistan government on Tuesday elected Justice Yahya Afridi as the next Chief Justice. While the appointment has met with criticism from civil society, lawyers and political parties such as Pakistan Tehreek-e-Insaf, the newly elected CJP is being called a ‘forthright and fair-minded man’.

Attorney and PTI politician Salman Akram Raja told ThePrint, that while PTI isn’t against Afridi personally, it does not support the amendments.

“He is a fair-minded jurist with an independent take on most issues. We respect that. However, we do not support the 26th amendment to the Constitution, which is based on unresolved electoral fraud, abductions of parliamentarians and coercion exercised against their families,” he said. 

Supreme Court lawyer Faisal Chaudhry called Afridi ‘very upright and honest, known for his integrity and competence’ with a ‘spotless career’. 

“Legal fraternity has no personal objection to it. They may have objected to the ignorance of the principle of seniority by the Parliament after passing of 26th amendment,” he told ThePrint. 

However, concerns surrounding the appointment and the passing of the Amendment remained.

“The fact that the real purpose of this constitutional amendment has been to supersede Justice Shah and Justice Munib Akhtar is now clear for all to see. Justice Shah has fallen victim to the ego of those in the corridors of power,” Hasnaat Malik wrote in The Express Tribune.

Lawyer Yaseer Hamdani echoed similar sentiments. 

“Yahya Afridi is a very good and progressive judge but the way Mansoor Ali Shah, perhaps our finest jurist, has been denied the role is perhaps a commentary on the extent to which the government backed by the unmentionables would go to get pliant judges,” he said. 

Hamdani said that Afridi, who is a fair and upright judge, will disappoint them soon. “This power play has never worked in the past and it won’t work now,” he added. 

Malik in his article noted that Justice Shah’s position was weakened due to his conflict with the incumbent Chief Justice of Pakistan, Qazi Faez Isa, following the 12 July ruling in the case of the reserved seats. After this judgment, Isa removed Shah from the Alternate Dispute Resolution (ADR) committee, impacting high-profile cases like the Arshad Sharif murder.

Isa also played a crucial role in the 26th constitutional amendment, which facilitated the supersession of Shah. The current government initially aimed to extend CJP Isa’s tenure but shifted focus after the July ruling, realising that maintaining unity among judges was increasingly difficult. Additionally, Justice Shah’s reluctance to engage with government officials, except for the attorney general, from July to September further contributed to his removal, Malik wrote. 

‘A pyrrhic victory’

The ruling coalition of Pakistan People’s Party (PPP) and Pakistan Muslim League-Nawaz (PMLN), passed the 26th Constitutional Amendment in the wee hours of Monday, after months of debates and deliberations. In the newly amended constitution, the government appoints the CJP through a parliamentary committee, instead of the President doing it on the basis of the seniority of judges. 

Calling the amendment ‘a pyrrhic victory’, analysts are calling it ‘a bid to control at the behest of those who cannot be named’ and ‘the darkest night of the country’s parliamentary history.’

Others have also pointed out how this was a ploy to not let Justice Mansoor Ali Shah– who should have succeeded Isa based on seniority– be the next Chief of the Supreme Court. 

“A tailor-made legislation, intended to curb the vibrancy of the judiciary, was introduced as 26th Amendment to the Constitution through a manufactured two-thirds majority. The bill known as ‘constitutional package’ is now a law, and what transpired behind its haste is yet to be unearthed,” Express Tribune wrote in its editorial. 

First CJP from tribal region

Afridi,59, is the first person to be elected as CJP from the Federally Administered Tribal Areas (Fata) region.  

Pakistan Prime Minister Shehbaz Sharif’s government swiftly submitted a summary to President Asif Ali Zardari, who approved Afridi’s appointment. The decision raised eyebrows, as no explanation was given for overlooking the more senior judges, Mansoor Ali Shah and Munib Akhtar. 

However, Information Minister Attaullah Tarar wrote on X that the nomination had been made in an “extremely transparent and democratic manner while considering the parliament’s supremacy under the new constitutional amendment”.

Interestingly, Pakistani journalist and writer Nasim Zehra pointed out on X, how Justice Mansoor Ali Shah, Justice Yahya Afridi, and Justice Athar Minallah co-founded the law firm Afridi, Shah and Minallah in 1997. While close friends, the current power struggle has led to the executive and parliament seeking to limit the judiciary’s influence, resulting in Afridi becoming Chief Justice at the expense of Shah’s appointment.