ISLAMABAD: Senior puisne judge of the Supreme Court, Justice Mansoor Ali Shah, has called for the postponement of the Judicial Commission of Pakistan’s (JCP) meeting which was scheduled for tomorrow (Friday), as several petitions opposing the 26th Constitutional Amendment are still pending in the apex court.
In a letter to Chief Justice of Pakistan (CJP) Yahya Afridi on Thursday, Justice Mansoor raised objection over the current JCP and demanded deciding the pleas to resolve the matter amicably.
The judge said the JCP which is constituted under the 26th Constitutional Amendment had decided to conduct a meeting to consider names for the appointment of additional judges to the Sindh Hight Court and the Peshawar High Court on December 6.
According to the 26th Constitutional Amendment, the strength of the Judicial Commission is 13 members. The judicial commission is mandated to appoint judges to the Supreme Court, high courts, and the Federal Shariat Court (FSC).
As per the addition of Article 175-A in the Constitution through the 26th Amendment, the JCP will be headed by CJP and will also consist of two senators and two MNAs.
The commission would also consist of three senior-most judges of the Supreme Court, the most senior judge of the constitutional bench, the Federal Minister for Law and Justice, the Attorney General for Pakistan, an advocate not having experience of less than 15 years of practice in the Supreme Court to be nominated by the Pakistan Bar Council (for two years).
A woman or non-Muslim member of parliament qualifies to be a parliamentarian to be nominated by the speaker for two years and will also be part of the key panel.
Listing down his reservations over the said meeting, Justice Shah said the current JCP had been restructured and reconstituted under the 26th Constitutional Amendment of the Constitution and the very constitutional validity of the said Constitutional Amendment had been challenged before the Supreme Court of Pakistan by numerous petitioners from diverse segments of society.
Over two dozen petitions were currently pending before the Supreme Court in this regard, he maintained.
“While the outcome of this challenge remains uncertain (it may fail or succeed), a verdict invalidating the Constitutional Amendment would render any actions or decisions taken by this new commission, particularly including nominations for the appointments of additional judges in various high courts, null and void. Such an eventuality could cause serious embarrassment to the institution and the individuals involved.”
He said it would embarrass and weaken the institution and also lead to a significant waste of public resources and time.
“All this can be avoided by hearing and deciding the petitions challenging the 26th Constitutional Amendment by the full court of the Supreme Court, so that the question mark on the legitimacy of this commission is resolved once and for all. Further, appointments of additional judges in various high courts by such commission, whose constitutional validity and legitimacy are under question, will cast shadows over the moral authority of these appointments and generate mistrust and weaken public confidence in the judiciary of Pakistan,” Justice Mansoor said.
He said to avert such anomalies, Justice Munib Akhtar and he, as the majority members of the then committee under the Supreme Court (Practice and Procedure) Act 2023, resolved on October 31 to fix the petitions challenging the 26th Constitutional Amendment for hearing before the full court of the Supreme Court.
“However, despite this decision, those petitions have not yet been fixed for hearing by the Registrar before the full court. And we never received any response from your good-self or from the registrar in this regard,” he contended.
Calling them matters of paramount constitutional and public importance, he stressed their hearing and deciding the pleas “before any further actions are taken by the newly constituted Commission under the challenged Constitutional Amendment”.
The new clause (4) of Article 175A, he said explicitly mandated that the rules must provide for procedure and criteria for assessment, evaluation, and fitness for appointment of judges, which was not the case prior to the amendment under the previous clause (4) of Article 175A.
“In view of this constitutional position, when the previous commission was established through the 18th Constitutional Amendments, its first act was to make its Rules of 2010. Without first making rules prescribing criteria for the assessment and evaluation of the fitness of eligible persons, the nominations for the appointment of additional judges in the high courts are likely to create a public perception that the majority of the Executive in the Commission is attempting to pack the courts — an impression that must be dispelled.
“Therefore, it is just and proper that until the rules of procedure, “including the procedure and criteria for assessment, evaluation and fitness for appointment of Judges,” are made by the Commission under clause (4) of Article 175A of the Constitution, the matter of appointment of Judges should be postponed,” he demanded.
