THE first test of the 26th Amendment is already here.

With Chief Justice Qazi Faez Isa retiring by the end of the week — and, according to the law minister, seemingly unwilling to accept any extension in his tenure — all eyes will be on the newly constituted Special Parliamentary Committee, which must nominate the next chief justice from among the three senior-most judges of the Supreme Court under the newly enacted amendments.

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This committee, which has been engineered such that it gives the government much more control over who the chief justice shall be, must give a name by today (Oct 22) — ie, within three days prior to the retirement of the chief justice. Given the circumstances in which the amendment has been enacted, it has long been speculated that its main purpose was to block the senior puisne judge, Justice Mansoor Ali Shah, from office and/ or dilute his authority.

Given the restlessness brewing in the legal fraternity, it is in the government’s best interests that such reservations be immediately put to rest. The ruling coalition, which will control the nomination process, must demonstrate that its intent was never to interfere in Justice Shah’s elevation and, in recognition of him being not only the senior-most judge of the apex court but also one of its most respected jurists, nominate him as its first choice.

Here, it may be recalled that PPP chairman Bilawal Bhutto-Zardari had last month told various TV channels that “Justice Mansoor will become the next chief justice, I have no doubt about it”, and also noted that, “Chief Justice Qazi Faez Isa and Justice Mansoor Ali Shah are both respectable figures. Both were part of the bench for Shaheed Zulfikar Ali Bhutto’s case, and they should not be made controversial”. He must now stand by his word.

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It would be unfortunate if the government chooses to target Justice Shah merely for the position he took in the reserved seats case, and attempts to ‘punish’ him by denying him of his much-deserved elevation. It seems pertinent to point out that there has been an ongoing media and social media campaign against the judges who ruled in majority against the ECP’s decisions in the reserved seats issue, and some government leaders gave more air to this controversy in their speeches to parliament when the 26th Amendment was being tabled.

The independence of the judiciary is enshrined as one of the core tenets of the Constitution, and any move by the government to punish judges for holding independent views will not sit well in these fraught times. Now that it has arrogated more powers over the judiciary to itself, the government must act judiciously and with restraint. It should not stir more trouble for itself.

Published in Dawn, October 22th, 2024