ISLAMABAD: The Judicial Commission of Pakistan’s (JCP) rules committee is expected to convene soon to consider a long-standing demand of the legal fraternity to streamline and determine the criteria for nominating superior court judges.

A source privy to the development told Dawn that though a formal date of the meeting was yet to be finalised, different lawyer bodies had been demanding such a meeting for quite some time to amend the Judicial Commission of Pakistan Rules of 2010.

The last such committee was constituted by former chief justice of Pakistan (CJP) Gulzar Ahmed. Its members include incumbent CJP Umar Ata Bandial, Justice Maqbool Baqar, Justice Sardar Tariq Masood, former Supreme Court judge Sarmad Jalal Osmany, Attorney General for Pakistan (AGP) Khalid Jawed Khan and Pakistan Bar Council’s (PBC) representative Akhtar Hussain.

“We believe that the committee should be constituted afresh since Justice Bandial has become the CJP,” commented Mr Hussain of the PBC.

Lawyers’ bodies primary demand remains adherence to seniority principle when elevating judges

Bar councils have been demanding since long that the consultation during JCP’s meetings should be meaningful though the primary demand of the PBC will remain adherence to the seniority principle.

However, some bar members also believe that competency, temperament, integrity, compassion, proficiency, etc, should be the guiding principles while considering the nomination of a candidate to become a superior court judge.

Justice Isa’s letter

The necessity to develop proper criteria for elevating judges can be gauged from the fact that even Justice Qazi Faez Isa — a senior puisne judge of the Supreme Court and a JCP member — wrote a letter to former CJP Ahmed on Jan 4 in this regard. Justice Isa suggested adopting a proper procedure for selecting and elevating judges to the superior court, arguing that once the nomination and selection criteria were determined, it would help dispel misgivings that arbitrariness in the selection process holds sway.

Justice Isa’s letter also highlighted that Article 175A (4) of the Constitution stipulated that the JCP should make rules regulating its procedure of elevating judges to the Supreme Court.

This power to make rules regulating its procedure did not enable nor empower the commission to act beyond the mandate given to it by the Constitution, Justice Isa emphasised, adding that Rule 3 of the Judicial Commission of Pakistan Rules 2010 only meant that the nominees be routed through the chief justices concerned, not that the concerned chief justices alone might make nominations.

He highlighted that the commission was set up to make the nomination and selection process inclusive and transparent by diluting the power of the CJP instead of enhancing it.

Article 175A (2) of the Constitution stated that the CJP would be the chairman of the commission and nothing more and it did not empower him or her to nominate someone alone, Justice Isa wrote in the letter, adding that it also did not state that the commission might consider the CJP’s nominee only.

‘PBC should be consulted’

PBC representative Hussain, meanwhile, said that all members of the JCP committee were equal and that clear and transparent criteria should be evolved to elevate judges from the district judiciary to the high court or the Federal Shariat Court, or from the high court to the Supreme Court.

And before initiating a candidate for elevation to superior courts, the PBC should be consulted in advance in a meaningful manner, he said.

SHCBA’s stance

Likewise on Nov 27, the Sindh High Court Bar Association challenged before the Supreme Court the JCP’s discretion in appointing judges.

The petitioner sought a declaration that the JCP should structure its discretion of elevating superior court judges by inviting suggestions from all relevant stakeholders, including judges, senior lawyers and bar representatives, members of the parliamentary committee, the federal and provincial governments, civil society and litigants.

The petition also pleaded that the apex court should also direct the JCP to frame a comprehensive and detailed rules or guidelines to structure both the process of appointments and criteria and parameters for appointments after considering different aspects in the light of suggestions, directives or framework the Supreme Court might deem appropriate.

The JCP Rules of 2010 were constituted by the commission when Iftikhar Muhammad Chaudhry was the chief justice of Pakistan. The rules empower the top adjudicator to initiate nominations in the commission for appointment against a vacancy of judges in the superior judiciary under Rule 3.

Rule 4 empowers the chairman, who happens to be the CJP, to regulate the proceedings of the commission, which can call for any information or record required by it from any person or authority for carrying out its functions.

Under Rule 5(4), the commission’s proceedings will be held in camera, whereas the chairman under Rule 5(5) can constitute one or more committees of members as deemed necessary.

Published in Dawn, February 27th, 2022