ISLAMABAD:
As the Judicial Commission of Pakistan (JCP) will consider the extension of the Supreme Court’s constitutional bench today (Saturday), senior puisne judge Justice Syed Mansoor Ali Shah has demanded that proposed rules must provide a mechanism and criteria for the nomination and determination of the number of judges for the constitutional benches of the Supreme Court and high courts.
“The commission has already nominated and determined a number of judges of the Supreme Court and the Sind High Court for Constitutional Benches in the absence of any mechanism or criteria in place. Therefore, there has been no logic or reason backing the nomination and determination of the number of judges for the Constitutional Benches of the Supreme Court and Sind High Court,” says a nine-page letter written by Justice Shah to the JCP secretary.
Justice Shah says that the nomination and determination under Articles 191A and 202A of the Constitution cannot be done in a vacuum and the JCP must first lay down an objective criterion through the proposed rules.
“The extension of the existing Constitutional Benches of the Supreme Court of Pakistan is coming up tomorrow [today]. Hence it is imperative and obligatory on the Commission to formulate a mechanism and criteria for the nomination and determination of the judges for the Constitutional Benches in the general interest of the public,” says the letter.
Justice Shah suggested that the criteria can include (i) the number of reported judgments of the judges on the interpretation of the Constitution; including dissents or additional notes on constitutional law that have been authored by the judge while being a part of a larger bench hearing important constitutional matters. “The Proposed Rules are currently silent in this respect,” he says.
Justice Shah notes that the exercise of framing rules is an arduous and a painstaking task and cannot be done every now and then. The Rule Making Committee; therefore, must attend to the criteria for nominating judges to the constitutional benches while making these rules, he stressed.
The letter states that the merit of a person for appointment as a judge should be determined in accordance with the constitutional criteria set out in the oath of office of a judge under the Constitution which provides that he will preserve, protect and defend the Constitution; will not allow his personal interest to influence his official conduct or his official duties; and in all circumstances will do right to all manner of people, according to law, and without fear or favour affection or ill-will.
Justice Shah also says that allowing civil intelligence agencies a say in the appointment process is prone to misuse, especially when primacy in the commission is enjoyed by the executive, adding that this must be avoided and the judicial members may rely on their personal information collected from their judicial peers and otherwise.
H also suggests the submission of a detailed application form as given in the schedule, which will be for the criteria for assessment as per Article 175A (4) of the Constitution. “The form must include information for advocates for 25 reported judgments, where the nominee has independently argued the case.
He also recommends that the nominees should undergo a psychological test in order to gauge critical thinking, emotional intelligence, and stress management by a high-powered Medical Board, constituted by the commission. “Nominees to undergo an Interview by a Committee of the Judicial Members of the Commission,” Justice Shah suggests.
A peer review of the nominee is also suggested by the committee of the judicial members of the commission by collecting information from the former, as well as, sitting judges to assess the credentials of the nominees. It is also suggested that after shortlisting, the commission should invite comments from the public regarding the shortlisted nominee on an online electronic portal.
Justice Shah urges openness and transparency in the JCP proceedings. “Under Article 175A(3E) of the Constitution only the proceedings before the Special Parliamentary Committee are to be held in camera, he writes in the letter.
“The Constitution intentionally does not provide such a requirement for the proceedings of the Commission. Hence the discussion and debate in the meetings of the Commission is to be duly documented in the minutes of the meeting and put out in the public domain, the letter reads.
“This also meets the constitutional requirement of Article 19A (right to information) of the Constitution, which states that a citizen shall have the right to access information in all matters of public importance,” Justice Shah continues.
“Appointment and nomination of judges of the constitutional court is undoubtedly a matter of great public importance. It is the right of the people to know why a nominee was appointed and other nominee rejected. This openness enhances transparency and accountability of the Commission besides restoring public trust in the judicial system.”
Justice Shah says that the rule about approaching any member by the nominee may be omitted and in case this rule is to be retained, the same may be suitably amended to ensure that it must be based on some valid evidence to establish that the candidate directly or indirectly approached the members to influence his/her nomination.
“It is expected of a judge at the High Court eagerly learn all the other categories of legal work and should not restrict himself to the area of his legal expertise. This is important because the High Court is the feeding channel for the Supreme Court and therefore judges must be trained in all areas of laws.”
Justice Shah made it clear that subject to his stated position regarding the full court to first judicially examine the constitutional validity of the 26th constitutional amendment and as a consequence the constitutionality of the Judicial Commission of Pakistan, he is submitting his comments to the proposed Rules shared by the Rule Making Committee of the Judicial Commission of Pakistan, on the website of the Supreme Court of Pakistan for public comment.
Meanwhile, six Pakistan Bar Council (PBC) members urged the JCP to defer Saturday’s (today) meeting till the petitions, challenging the 26th Constitutional Amendment were decided. Otherwise, they warned, the proposed rules framed would be ultra vires of the Constitution, the doctrine of the independence of the judiciary, access to justice and the rule of law.
Chief Justice Yahya Afridi on December 6 formed a four members JCP committee, led by Justice Jamal Mandokhail to draft the rules relating to the regulations of the procedure, including criteria, for assessment evaluation and fitness for appointment of judges under clause 4 of Article 175A.
The committee has finalised the draft of rules which will be placed before the JCP meeting on Saturday. Dozens of nominations for the judges of the five high courts are also being made by the JCP members. It is learnt that JCP will only consider the draft of proposed rules for approval and the nominations for judges appointment will be made after the approval of JCP rules.
The six PBC members, who are associated with the Professional Group, have written the letter to the JCP, wherein they stated that the commission had been formed under the 26th amendment, the vires of which had been challenged and is sub-judice before the Supreme Court.
“The said Petitions challenging the 26th Amendments have been numbered and are ripe for hearing by the Honourable Court. Therefore, the framing and adoption of the Proposed Rules, 2024 may be postponed until after the decision of the Petitions,” they said.
The letter stated that the primacy given to the executive, and parliamentary representatives in the appointment of judges was contrary to the cardinal principles of independence of judiciary, rule of law and access to justice. The Proposed Rules as framed, they added, were in violation of the four apex court’s judgments.
They submitted that Rule 10 of the proposed rules was “absolutely ultra vires” of the Constitution as well as the judgments of the superior courts. “The explanation to Rule 10 will clearly undermine the independence of the judiciary and access to justice as the nominations for the appointment of a judge to the Supreme Court would be made from among the five most senior judges of the high court concerned.
“This act of pick and choose by the Commission dominated by the Executive and Parliamentary nominees allied with them will gravely undermine the independence of the judiciary and access to justice,” they said.
“Even the nomination for the appointment of the Chief Justice of the High Court has been provided to be made from among the three most senior Judges of that High Court. Unlike the appointment of the Chief Justice of Pakistan, as provided under Article 175 A of the Constitution, no such provision exists and/or is provided for in the Constitution for the appointment of high court judges. This provision is ultra vires the Constitution as the rules cannot travel beyond the scope of the law.”
They submitted that the rules must ensure that the criteria excluded those persons who were privy to political and other influences whereas no adequate protection had been provided for under the proposed rules.
Likewise, the Women in Law Initiative Pakistan (WLIP) also submitted its comments and feedback on the draft rules, saying that the proposed JCP (Appointment of Judges) rules failed to include or even speak about fair representation of women.
“Fair representation of women in judicial appointments and diversity should be integral components of the merit criteria, on the basis of Articles 25 and 34 of the Constitution,” said a statement issued by the WLIP.
“The proposed Rules risk importing the problems of political influence and appeasement associated with appointment of Chief Justice of Pakistan after the 26th Amendment to the appointment of Chief Justices of High Courts as well. The non-approval of a nominee as envisaged in Rule 10 (3) puts them at risk of disqualification. We are concerned about the impact that such a disqualification would have on their reputation and any current positions they hold.”
The WLIP said it was not clear under which law, Constitution or the rules, there was a provision for disqualification on the grounds mentioned in Rule 10 (3) and how was the JCP authorised to ‘disqualify’ people on such a basis.
“We are especially concerned with the impact of this on district judicial officers, in that, where does such a ‘disqualification’ leave the candidates when they end up being ‘disqualified’ under this Rule? With their integrity or moral turpitude questioned, will they be able to continue in the office and role they occupied prior to being considered for appointment, for instance, as a district judicial officer,” it added.
“We remain concerned about the procedure and manner in which the proposed Rules have been drafted in haste. The proposed Rules lack genuine and participatory consultation and offered very little time and scope to provide feedback. It also makes no mention of the process through which those submitting the feedback would be informed of the outcomes of their feedback by the JCP,” it continued.
“This makes the process more arbitrary and less transparent and does not allow genuine and meaningful participation of all stakeholders. The Rules should not be passed in haste. Proper deliberations and consultations with all stakeholders should be conducted before any Rules are passed after the petitions against the 26th Amendment have been heard and decided,” the WLIP said.
