Islamabad:
A subcommittee from the Judicial Commission of Pakistan (JCP) headed by Judge Jamal Khan Commandkhail failed to evolve the criteria for selecting judges for constitutional banks (CBS), since most members held the opinion that the Constitution does not train it to do so.
The five -member committee held a meeting on Thursday, August 21. Other members included Pakistan Attorney General (AGP) Mansoor Awan, Senator Farooq H Naek (of Treasury Banks), Senator Ali Zafar (of opposition banks) and the representative of the Pakistan Bar Association (PBC) Ahsan Bhoon.
The president of the Supreme Court of Pakistan (CJP), Yahya Afridi, had previously formed two committees led by Judge Commandkhail to prepare the draft rules for the annual judicial performance evaluation of the judges of the Superior Court, as well as the criteria for the selection of judges for the CBS.
According to the sources, during Thursday, the members of the meetings committee deliberated on the rules proposed for the evolution criteria for the selection of CB judges.
They said that three members, Agp Awan, the Bhoon of PBC and Senator Naek, opposed the framing of the rules that cite the constitutional prohibition.
Senator Ali Zafar dissent with the majority opinion. He was of the opinion that the rules must be framed to regulate the discretion of JCP members. Despite the long discussion, the members of the majority were not convinced about the framing of the rules. Later, the matter was sent to JCP again.
The lawyers are divided into the framing of the rules.
A main lawyer argued that the rules must be framed in the light of several judgments of the Supreme Court. However, the government is expected to ensure a majority in the JCP to oppose the measure to frame criteria to select judges for constitutional banks.
Since the promulgation of the 26th Constitutional amendment, the judges of the Supreme Court and the constitutional banks of the SENDH Superior Court have been designated without a structured selection process.
There is the perception that the government has succeeded in excluding the superior judges who can question the government in any case of high profile of the CBS.
The Government has been completely satisfied with the performance of the CB of the Supreme Court, which confirmed the trial of civilians in the military courts, approved the transfer of judges of different courts superior to the Superior Court of Islamabad, and revoked the SC ruling that had granted reserved seats of PTI after the general elections of 2024.
The lawyers have also asked questions about wisdom and logic behind the nomination of a particular set of judges to the CBS, pointing out that judges received as critics of the current regime are often excluded.
The lawyer Rida Hosain expressed her surprise that a judge raised only a few days could be nominated for a CB, while several judges of the high -level Supreme Court with extensive constitutional experience were not. In the absence of clear criteria, he pointed out that such nominations seem arbitrary.
She said that the interpretation of the Constitution’s government is both selfish and incorrect. “There is nothing in the amendment 26 that stops the framing of the rules to nominate the judges to the CBS.
In fact, the government’s position supports the case against the 26th amendment. The government believes that there should be an absolute discretion in the nomination of judges, allowing judges to be nominated for completely political reasons that have nothing to do with the competition. “
Rida declared that the government will have to justify the nominations that have been made so far.
“Why was Judge Ali Baqir Najafi nominated for CB the same week that made an oath in the Supreme Court? Why has Judge Amindin Khan been nominated for the head of the CB? Why are senior judges the significant constitutional experience?
The lawyer said that the objective criteria of framing would require transparency and equity. In the judicial era after 26 of the amendment, he said, the Executive is not interested in transparency or equity, since it seeks to control the Judiciary.
Shortly after the approval of the 26th constitutional amendment, the senior judge of SC Puisne Syed Mansoor Ali Shah had asked to establish clear guidelines to nominate and determine the number of judges in the CBS.
“The Commission has already nominated and determined several judges of the Supreme Court and the Sindh Superior Court for the CBS in the absence of any current mechanism or criteria,” Judge Shah wrote in a nine -page letter to the JCP secretary in December last year.
“Therefore, there has been no logic or backup reason for the nomination and determination of the number of judges for the CBS.” He said that nominations under articles 191a and 202a of the Constitution cannot be made in a vacuum, and that the JCP must first establish objective criteria through the proposed rules.
Judge Shah suggested that these criteria could include the number of constitutional trials informed by a judge, including dissidents or additional notes, while serve in larger banks that heard significant constitutional cases
No rules have been framed to regulate the practice and CBS procedure.
Article 191a (6) says that despite anything contained in the Constitution, but subject to the law, judges nominated under clause (1) can make rules that regulate the practice and procedure of the CBS.
This provision reflects that CB judges will frame the rules regarding the regulation of banks.
However, Judge Aminuddin Khan said that the word “May” has been used in that provision, which shows that the rules framing is not mandatory.
According to the press release of November 20 of the Supreme Court, the SC registry had the task of preparing the draft rules that regulate the practice and procedures of the CBS in consultation with Judge Muhammad Ali Mazhar, and the committee for approval will review it.
It is known that a SC judge had argued that CB judges should approve new rules.
