ISLAMABAD: A meeting of the Judicial Commission of Pakistan’s (JCP) rules-making committee remained inconclusive on Friday when Law Minister Azam Nazeer Tarar revealed that the federal government was considering bringing constitutional amendments to yet again change the present structure of elevating superior court judges.

Presided over by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the meeting of the 29-member committee has to be postponed consequently on the consideration that any deliberations will become futile if parliament amends Article 175A of the Constitution to modify the procedure of appointments of judges in the superior judiciary.

At the outset, the law minister requested the deferment of the meeting in view of the federal government’s intention to amend the constitutional provision.

During the meeting, Justice Yahya Afridi, one of the members of the committee, suggested that since the government intended to propose amendments to the Constitution, discussion on the agenda should be deferred and the meeting postponed. The views of all the members were solicited, and it was agreed to adjourn the meeting. However, it was also agreed that this should not delay the process of appointments, which may continue in accordance with the existing rules.

Bar councils demand clear criteria for judicial elevation process; proposed changes aim to dilute CJP’s nomination powers

Even the introduction of the concept of JCP and the Parliamentary Committee (PC) through the 18th Amendment by inserting Article 175A in the Constitution could not satisfy the stakeholders, who repeatedly point out that the entire procedure has become a cherry-picking exercise, in which only near and dear ones or chamber fellows are elevated.

Earlier, in its meeting of Oct 26, 2023, the JCP had appointed Justice Syed Mansoor Ali Shah and former judge Manzoor Malik as chairman and co-chairman, respectively, of the special committee tasked with drafting amendments and updating criteria governing the elevation of judges to the superior judiciary.

An informed source told Dawn that the idea of amending the elevation process was made in view of the long-standing demand by the bar councils that since the members of the JCP rules committee were equal, clear criteria should be evolved suggesting how to elevate judges to the high court and top court.

Thus, it is necessary to make nomination and selection process transparent by diluting the power of CJP and the respective chief justices of the high courts.

The bar members believe that Article 175A (2) of the Constitution, though it recognises the CJP as chairman of JCP, does not empower him to nominate alone. Therefore, nowhere has it been written that the commission may consider only those nominees forwarded by the CJP or the chief justices of the high courts.

The members of the bar councils have been raising their voices, stating that the practice of using discretionary and absolute powers by the CJP or respective high court chief justices in initiating nominations without consulting other members of the JCP should be discouraged.

Initially, the JCP Rules 2010 were constituted by JCP when Iftikhar Muhammad Chaudhry was CJP and empowered the top adjudicator to initiate nominations in the commission for appointment against a vacancy of judges in the superior judiciary.

However, the source confided that one consideration before the parliament was to replicate what was being practiced in South Africa, where all stakeholders including members of the judiciary and elected politicians sit together and decide about the credentials of the nominees.

However, chief justices of the Lahore High Court (LHC) as well as the Peshawar High Court (PHC) were of the view that constitutional amendments by the parliament were a time-consuming task. Therefore, the meeting should consider the suggestions put forward by the rules committee.

Their suggestions came against the backdrop that the LHC is facing a shortage of 22 judges, the Sindh High Court (SHC) is short of eight judges, which will become ten in the coming June, whereas the Supreme Court is functioning with a shortage of three judges.

Pakistan Bar Council’s representative in JCP, Akhtar Hussain, emphasised that constitutional amendments should be done as early as possible if the appointments are to be made, adding that if the appointments have to be done in accordance with the old procedure, then there was no point in conducting the entire exercise of devising recommendations through the rule-making committee.

According to the suggestions by the rule-making committee, the chairperson of JCP will propose three names for the appointment of a judge in the Supreme Court for each vacancy and will convene the meeting of JCP for deliberation not later than 15 days before the occurrence of the vacancy.

Likewise, for the appointment of chief justice of the high court, the chairperson will convene the meeting to consider the five most senior judges of the concerned high court at least one month before the occurrence of the vacancy.

For the appointments of judges of the high courts, the chairperson will call nominations from the selection committee concerned not later than 60 days and convene a meeting of the commission for deliberations not later than 30 days before the occurrence of the vacancy.

Published in Dawn, May 4th, 2024