ISLAMABAD: Justice Syed Mansoor Ali Shah, while expressing reservations on holding of Judicial Commission of Pakistan (JCP) meeting on Friday (Dec 6), asked the chief justice of Pakistan to postpone it until the fate of 26th Constitutional Amendment is decided by the Full Court of the Supreme Court.

CJP Yahya Afridi has called JCP meeting on Friday to consider the nominations for the appointment of additional judges of the High Court of Sindh and the Peshawar High Court.

Justice Mansoor on Thursday wrote a letter to CJP/Chairman of Commission Yahya Afridi stating; “I have received the letters dated 23rd November 2024, regarding convening of the meeting of JCP, constituted under the 26th Constitutional Amendment, on 6th December 2024 to consider the nominations for the appointment of Additional Judges of the High Court of Sindh and the Peshawar High Court.”

Don’t move every case to constitutional benches: Justice Mansoor

The senior puisne judge stated that the current Commission has been restructured and reconstituted under the 26th Constitutional Amendment, which has been challenged before the Supreme Court of Pakistan by numerous petitioners from diverse segments of society. Over two dozen petitions are currently pending before the Supreme Court in this regard.

He wrote 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 a serious embarrassment to the institution and the individuals involved, as was witnessed following the Supreme Court’s decision in the Sindh High Court Bar Association case”, he added.

Justice Mansoor further wrote it will not only embarrass and weaken the institution but will also lead to a significant waste of public resources and time. When 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 is under question, will cast shadows over the moral authority of these appointments and generate mistrust and weaken public confidence in the judiciary of Pakistan.

He stated; “To avert such anomalies, Justice Munib Akhtar and I, as the majority members of the then Committee under the Supreme Court (Practice and Procedure) Act 2023, resolved on 31st October 2024 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.”

“It is imperative that these matters, being of paramount constitutional and public importance, are heard and decided before any further actions are taken by the newly constituted Commission under the challenged Constitutional Amendment. I have already brought this reservation to the notice of the Commission in its previous meetings and it has been so recorded in the minutes of the meetings.”

Justice Mansoor maintained that clause (3) of the newly added Article 191A of the Constitution bars the hearing of the matters specified therein by any Bench of the Supreme Court other than a Constitutional Bench but does not bar the Full Court of the Supreme Court from hearing any matter, including petitions filed under Article 184(3) of the Constitution.

The distinction between the Full Court and the Benches of a Court is well established and explicitly recognised in Article 203J(2)(c) and (d) of the Constitution. However, if your lordship has any doubt regarding this constitutional position, the same may also be judicially decided by the Full Court of the Supreme Court before addressing the merits of the said petitions.

Justice Mansoor also pointed out that there is a constitutional impediment to the making of appointments of Judges by the Commission. Clause (4) of Article 175A of the Constitution expressly mandates the Commission to make its rules of procedure, “including the procedure and criteria for assessment, evaluation and fitness for appointment of Judges”.

He stated that in the absence of such rules, any proceedings undertaken by the Commission for the appointment of judges would be unconstitutional. It is pertinent to note that the General Clauses Act, 1897, does not apply to the Constitution (see Government of Punjab v. Ziaullah Khan 1992 SCMR 692 and Muhammad Arif v. State 1993 SCMR 1589).

Consequently, Section 24 of the said Act, which provides for the continuance of previous rules made under ordinary laws, does not preserve the previous Judicial Commission of Pakistan Rules, 2010. Even otherwise the new clause (4) of Article 175A explicitly mandates 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.

Moreover, where the Constitution envisages the conduct of proceedings by a constitutional body pending the making of its rules of procedure, it explicitly provides an alternative mechanism (see Article 67(2)).

“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 concluded.

Copyright Business Recorder, 2024