ISLAMABAD:
As the Judicial Commission of Pakistan (JCP) will consider the extension of the Supreme Court’s constitutional bench today (Saturday), Chief Justice Syed Mansoor Ali Shah has demanded that the proposed rules should provide a mechanism and criteria for nomination and determination of number of judges for the constitutional chambers of the Supreme Court and the higher courts.
“The commission has already nominated and appointed several judges of the Supreme Court and the Sindh High Court to the Constitutional Benches in the absence of any established mechanism or criteria. Therefore, there has been no logic or reason supporting the appointment and determination of the number of judges for the Constitutional Benches of the Supreme Court and the Sindh High Court,” reads a nine-page letter written by Justice Shah to secretary of the PCJ.
Justice Shah says nomination and determination under Articles 191A and 202A of the Constitution cannot be done in a vacuum and the PCJ must first establish an objective criterion through the proposed rules.
“Expansion of the existing Constitutional Chambers of the Supreme Court of Pakistan will take place tomorrow. [today]. Hence, it is imperative and mandatory for the Commission to formulate a mechanism and criteria for the nomination and determination of judges of the Constitutional Courts in the general interest of the public,” the letter says.
Justice Shah suggested that the criteria may include (i) the number of reported rulings by judges on the interpretation of the Constitution; including dissents or additional notes on constitutional law that have been written by the judge while serving on a larger court hearing important constitutional matters. “The currently proposed rules say nothing in this regard,” he says.
Justice Shah points out that the exercise of rule making is an arduous and painstaking task and cannot be done once in a while. The Standards Development Committee; Therefore, the criteria for the appointment of judges for the constitutional benches must be taken into account when formulating these rules, he stressed.
The letter states that a person’s merit to be appointed a judge must be determined in accordance with the constitutional criteria established in the oath of office of a judge under the Constitution, which states that he or she will preserve, protect and defend the Constitution; will not allow his personal interest to influence his official conduct or official duties; and in all circumstances he will do good to all kinds of people, according to the law, and without fear or favor, affection or ill will.
Justice Shah also says that allowing civilian intelligence agencies to have a say in the appointment process is prone to abuse, especially when primacy in the commission is enjoyed by the executive, adding that this should be avoided and judicial members can rely on your personal information collected from your judicial peers and others.
H also suggests the submission of a detailed application form as given in the schedule, which will be for the evaluation criteria under Article 175A (4) of the Constitution. “The form must include information for advocates of 25 reported judgments, where the candidate has argued the case independently.
It also recommends that nominees undergo a psychological test to assess critical thinking, emotional intelligence and stress management by a high-powered medical board set up by the commission. “Nominees will undergo an interview by a committee of judicial members of the Commission,” suggests Justice Shah.
The commission’s judicial membership committee also suggests peer review of the candidate by gathering information from former and sitting judges to evaluate the candidates’ credentials. It is also suggested that after shortlisting, the commission solicits public comments on the shortlisted candidate on an online electronic portal.
Justice Shah urges openness and transparency in JCP proceedings. “Under Article 175A(3E) of the Constitution, only proceedings before the Special Parliamentary Committee will be held behind closed doors,” he writes in the letter.
“The Constitution intentionally does not establish such a requirement for the Commission’s procedures. Therefore, the discussion and debate at Commission meetings must be properly documented in the minutes of the meeting and made public, 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.
“The appointment and appointment of judges of the Constitutional Court is undoubtedly a matter of great public importance. It is the people’s right to know why one candidate was nominated and another was rejected. This openness improves the transparency and accountability of the Commission, in addition to restoring public confidence in the judicial system.”
Justice Shah says that the rule regarding approach of the candidate to any member can be omitted and in case this rule is maintained, the same can be suitably modified to ensure that it must be based on some valid evidence to establish that the candidate directly or indirectly reached out to members to influence his nomination.
“A Superior Court judge is expected to eagerly learn all other categories of legal work and should not be limited to the area of his legal specialization. This is important because the High Court is the feeder channel to the Supreme Court and therefore judges must be trained in all areas of law.”
Justice Shah made it clear that subject to his stated position regarding the full court first judicially examining the constitutional validity of the 26th constitutional amendment and consequently the constitutionality of the Judicial Commission of Pakistan, he will submit his comments to the proposed shared rules. by the Rule Making Committee of the Judicial Commission of Pakistan, on the website of the Supreme Court of Pakistan for public comments.
Meanwhile, six members of the Pakistan Bar Council (PBC) urged the PCJ to postpone the meeting on Saturday (today) until the petitions challenging the 26th Constitutional Amendment were decided. Otherwise, they warned, the proposed rules would be ultra vires the Constitution, the doctrine of the independence of the judiciary, access to justice and the rule of law.
On December 6, Chief Justice Yahya Afridi formed a four-member JCP committee, headed by Justice Jamal Mandokhail, to draft rules relating to procedural regulations, including criteria, for evaluation and suitability for appointment of judges under clause 4 of article 175A.
The committee has finalized the draft rules that will be presented before Saturday’s JCP meeting. PCJ members are also making dozens of appointments to judges in the five high courts. It is learned that the JCP will only consider the draft proposed rules for approval and nominations for appointment of judges will be made after the approval of the JCP rules.
The six members of the PBC, who are associated with the Professional Group, wrote the letter to the JCP, in which they stated that the commission had been formed under the 26th amendment, the vires of which had been challenged and are sub-judice before the Supreme Court. Court.
“The said Petitions challenging the 26th Amendment have been numbered and are ready to be heard by the Honorable Court. Therefore, the formulation and adoption of the proposed 2024 Rules 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 the judiciary, rule of law and access to justice. They added that the proposed rules violated the rulings of the four high courts.
They maintained that Rule 10 of the proposed rules was “absolutely ultra vires” of the Constitution as well as the judgments of the high courts. “The explanation of Rule 10 will clearly undermine the independence of the judiciary and access to justice as appointments for the appointment of a Supreme Court judge would be made among the five most senior judges of the high court concerned.
“This act of selection by the Commission dominated by executive and parliamentary candidates allied with them will seriously undermine the independence of the judiciary and access to justice,” they said.
“It has even been planned that the appointment for the appointment of the Chief Justice of the High Court will be made among the three most senior judges of that High Court. Unlike the appointment of the Chief Justice of Pakistan under Article 175A of the Constitution, no such provision exists or is made in the Constitution for the appointment of judges of the High Courts. “This provision is ultra vires the Constitution as the rules cannot go beyond the scope of the law.”
They argued that the rules should ensure that the criteria exclude those who are aware of political and other influences, while the proposed rules had not provided adequate protection.
Likewise, Women in Law Initiative Pakistan (WLIP) also submitted its comments and opinions on the draft rules, saying that the proposed rules for JCP (Judge Appointment) did not include or even talk about fair representation of women .
“Fair representation of women in judicial appointments and diversity should be integral components of the merit criteria, based on Articles 25 and 34 of the Constitution,” said a statement issued by the WLIP.
“The proposed rules risk also importing the problems of political influence and appeasement associated with the appointment of the Chief Justice of Pakistan after the 26th Amendment to the appointment of Chief Justices. Failure to approve a candidate as provided in Rule 10(3) puts him or her at risk of disqualification. “We are concerned about the impact such disqualification would have on their reputation and the current positions they hold.”
The WLIP said it was not clear under what law, Constitution or rules there was a provision for disqualification on the grounds mentioned in Rule 10(3) and how the PCJ was authorized to “disqualify” people on that basis.
“We are especially concerned about the impact this will have on district judicial officers, in that where does such ‘disqualification’ leave 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 position and role they held before being considered for appointment, for example, as a district judicial officer,” he added.
“We remain concerned about the procedure and the way in which the proposed rules have been hastily drafted. The Proposed Rules lack genuine and participatory consultation and offer too little time and scope to provide feedback. Nor does it mention the process through which those submitting comments would be informed of the results of their comments by the JCP,” he continued.
“This makes the process more arbitrary and less transparent and does not allow for genuine and meaningful participation of all stakeholders. The Rules should not be approved hastily. Adequate deliberations and consultations should be carried out with all stakeholders before passing any rule after petitions against the 26th Amendment have been heard and decided,” the WLIP said.
