Pakistan’s judicial crisis: How nations appoint top judges

As Pakistan’s judiciary grapples with a crisis over Justice Sarfraz Dogar’s appointment as acting chief justice of the Islamabad High Court, the controversy highlights a broader shift. While many countries move toward greater judicial independence, recent constitutional changes in Pakistan have tightened political control over the courts.

The controversy erupted when Justice Dogar, originally very low in seniority at the Lahore High Court, was transferred to the Islamabad High Court, where he was controversially recognized as the most senior, and subsequently elevated to Chief Justice, leading four sitting judges to reject his authority.

This rejection has thrown a wrench into the workings of one of Pakistan's most important courts and raised questions about the stability of judicial systems in Pakistan.

As Pakistan grapples with a crisis over the appointment of Islamabad High Court's chief justice, the controversy highlights a crucial question facing judicial systems worldwide: how should top judges be selected, and who gets to decide how top judges should be selected.

India: The collegium system

India's approach to senior judicial appointments offers the closest parallel to Pakistan's situation, though with key differences. India employs a "collegium system" where the Chief Justice of India and the four senior-most Supreme Court members select candidates for both supreme and high courts. These recommendations go through the Law Minister to the president for formal appointment.

This system, while providing clear guidelines for appointments, has faced its own controversies. In 2015, Parliament attempted to replace it with a National Judicial Appointments Commission, but India's Supreme Court struck down this change as unconstitutional. India's constitution addresses judicial transfers between high courts through Article 222, providing clear rules that help prevent leadership disputes.

China: One party control

China's system stands in stark contrast to both Pakistan and India's approaches. The Supreme People's Court's president is elected by the National People's Congress to a five-year term, renewable once, while other members are appointed by the Congress's Standing Committee based on the court president's nominations.

China has moved from historically appointing judges from the military, often without legal education, to requiring advanced degrees and specialized examinations. However, the Communist Party maintains ultimate control through Political-Legal Committees at each government level. This centralized control prevents the kind of internal disputes currently seen in Pakistan but at the cost of judicial independence.

United Kingdom: Increasing judicial independence

Britain's system for appointing senior judges underwent its most significant transformation with the Constitutional Reform Act 2005, moving away from political appointments to a structured, independent process.

The Act marked a decisive move away from political influence in judicial appointments, establishing the Judicial Appointments Commission (JAC) and creating a structured, independent selection process for senior judges. This reform specifically removed the judiciary from Parliament by creating a separate Supreme Court, ending the centuries-old practice of senior judges sitting in the House of Lords.

Pakistan, through its 26th constitutional amendment, has taken the opposite path, shifting power away from an independent judiciary toward one more subject to parliamentary control. This mirrors aspects of the American system, where political considerations influence judicial appointments and, consequently, legal decisions.

United States: Hyper-political appointments with lifetime tenure

The U.S. experience offers a cautionary tale for Pakistan's current trajectory. In America, landmark decisions on fundamental rights often split along lines reflecting the political affiliations of appointing presidents. This politicization has led to increasing controversy over Supreme Court nominations and growing public skepticism about judicial independence.

Unlike Pakistan's still-remaining seniority-based considerations, the U.S. has no formal requirements for prior judicial experience or seniority.

Once appointed, federal judges in the U.S. serve life terms with clear authority and no mandatory retirement age. This prevents internal disputes over leadership succession but has generated its own controversies over irreversibility of politically motivated appointments, which may at times be short-sighted.

Afghanistan - How quickly things can change

Afghanistan's experience demonstrates how quickly established appointment systems can change. Under the pre-2021 system, Supreme Court justices were appointed by the president with parliamentary approval to single terms of varying lengths.

The current Taliban regime has completely transformed this, requiring all judges to be Muftis and placing appointments under the supreme leader's control.

Lessons for Pakistan

Each system offers distinct lessons for Pakistan's current crisis. India's explicit constitutional provisions for judicial transfers could provide a model for preventing similar disputes. The UK's independent selection commission approach demonstrates how to reduce political influence while maintaining clear criteria for appointments.

As other nations like India, the UK and even China strengthen safeguards for judicial independence, Pakistan appears to be embracing a model more akin to the U.S. system, where judicial appointments often become battlegrounds for political ideology. This shift suggests future major legal decisions in Pakistan may increasingly reflect political calculations rather than purely legal considerations.