Judicial appointment chaos

To understand this, we must refer to the Constitution. It tasks the Judicial Commission of Pakistan with nominating judges of the Supreme Court, the provincial high courts, and the Federal Shariat Court. The Commission has sent the names to the prime minister. This person is constitutionally required to forward them to the president for their appointment as judges of the said courts. Following the 26th Constitutional Amendment, Article 175A(8) was amended to read as follows: “The Commission, by majority of its membership, shall nominate one person for each vacancy of a judge of the Supreme Court, a high court or the Federal Shariat Court [emphasis added] as the case may be, to the prime minister who shall forward the same to the president for appointment [emphasis added].”

This is in contrast to the wording of Article 48(1) of the Constitution. It expressly provides that “the president shall act on the advice of the cabinet or the prime minister”. Going further, Article 48(2) clearly states that, notwithstanding the provisions of Article 48(1), “the president shall act in his discretion in respect of any matter in respect of which the Constitution empowers him to do so…”. Article 175A(8) expressly provides that it is the president who shall appoint the persons nominated by the Commission. This provision purposely excludes the executive. It is apparent from the language of this article.

Keeping this in mind, we need to examine the two words used in the two provisions. Article 175A(8) uses the word “forward”while Article 48 uses “advice”. To elaborate, Article 175A specifies that “The Commission … shall nominate one person for each vacancy of a judge … to the prime minister who shall forward the same to the president” — in other words, it is not the prime minister who is taking the decision. When he has not made the decision, he is not advising the president to act; it is the office of the prime minister that is employed only to forward the nomination to the president. This person is the appointing authority.

On account of the lacuna — still awaiting correction — in the 26th and 27th Amendments, a situation arose which could be described as chaotic.

It is significant in the context that there is no provision similar to Article 48(1) in the Constitution with respect to the Commission, nor is there anything about what happens if the president refuses to appoint a person nominated by the Commission. The question is whether the nomination amounts to a binding direction/advice from the Commission, requiring the president to act on it. While there is no categorical provision, one would presume that where the president has the mandate to appoint, he also has the power to refuse. Thus it is the president who could, in writing, refuse to appoint a judge. Or if no reply is received from him within a reasonable time frame, it would be deemed that he has not appointed the judges nominated by the Commission.

What happened

I say this based on the specific provision to the proviso contained in Article 48(1). It provides that the president could, within 15 days, require the cabinet or the prime minster to reconsider the advice, and that, within 10 days, the president would have to act in accordance with the reconsidered advice. Since, under Article 48, the appointment of judges does not constitute an act of advice, this proviso would not be applicable.

As he could have under Article 48, where advice is given by the prime minister, it is also notable to note that the Constitution contains no provision that allows the president to send nominations back to the Commission for reconsideration. Perhaps, in considering the issue of the appointment of judges to the high court, parliament might, in its wisdom, have determined that the executive cannot appoint the judges of the high court; hence, the Commission was given the power to nominate, and the president to appoint, instead of the executive.

In contrast, Article 175A(3) reads: “Provided further that notwithstanding anything contained in the Constitution, the president shall, on advice of the prime minister [emphasis added], appoint the first chief justice of the Federal Constitutional Court from amongst the judges of the Supreme Court”.Article 48(1) shall thus apply in this situation. However, it would not apply in the case of the Commission nominating and sending its nominations to the prime minister for forwarding to the president. On account of the lacuna — still awaiting correction — in the 26th and 27th Amendments, a situation arose which could be described as chaotic. We now see that the president has accepted the appointment of the judges of the high court, — a matter in which he has exercised his discretionary authority.

The details

Published in Dawn, August 19th, 2026