Islamabad:
A subcommittee of the Pakistan Judicial Commission (JCP) led by judge Jamal Khan Mandokhail failed to develop the criteria for selecting judges for the constitutional benches (CBS), because most of the members estimated that the Constitution does not allow it.
The five -member committee held a meeting on Thursday, August 21. Other members included the Pakistan Attorney General (AGP) Mansoor Awan, Senator Farooq H Naek (Treasury Banks), Senator Ali Zafar (opposition benches) and the representative of the Pakistan Bar (PBC) Ahsan Bhoon.
The chief judge of Pakistan (CJP) Yahya Afridi had previously formed two committees directed by judge Mandokhail to prepare rules of rules for the annual evaluation of the judicial performance of high court judges, as well as criteria for selecting judges for the CBS.
According to sources, during the meeting of the meeting on Thursday, the members of the committee deliberated on the rules proposed for the evolution of the criteria for the selection of CB judges.
They said that three members – AGP Awan, Bhoon of PBC and Senator Naek – opposed the framing of the rules citing the constitutional prohibition.
Senator Ali Zafar dissipated with majority opinion. It was of the opinion that the rules should be drawn up to regulate the discretion of the members of the JCP. Despite a long discussion, the members of the majority were not convinced of the rules of the rules. Later, the case was again returned to the JCP.
Lawyers are divided on the framework of the rules.
A main lawyer argued that the rules should be drawn up in the light of several judgments of the Supreme Court. However, the government should guarantee a majority in the JCP to oppose this decision for the framing criteria to select the judges for the constitutional benches.
Since the promulgation of the 26th constitutional amendment, the judges of the Supreme Court and the constitutional benches of the High Court of the Sindh have been appointed without structured selection process.
There is a perception that the government has managed to exclude higher judges who can call into question the government in any high -level CBS.
The government was fully satisfied with the performance of the CB of the Supreme Court, which confirmed the trial of civilians before the military courts, approved the transfer of judges of different lessons to the High Court of Islamabad and canceled the decision of SC which had granted seats reserved for the PTI after the general elections of 2024.
Lawyers have also raised questions about wisdom and logic behind the appointment of a particular set of judges to the CBS, stressing that judges perceived as criticism of the current regime are often excluded.
Lawyer Rida Hosain expressed his surprise that a judge raised only a few days ago could be appointed to a CB, while several judges of the Supreme Court with vast constitutional expertise have not been. In the absence of clear criteria, she noted that such appointments seem arbitrary.
She said that the government’s interpretation of the Constitution is both selfish and erroneous. “There is nothing in the 26th amendment which stops the framework of the rules for the appointment of judges to the CBS.
In fact, the government’s position approves the case against the 26th amendment. The government believes that there should be absolute discretion in the appointment of judges, effectively allowing judges to be appointed for entirely political reasons which have nothing to do with competence. “”
Rida said the government will have to justify the appointments that have been made so far.
“Why was Judge Ali Baqir Najafi appointed to the CB the same week when he was sworn in before the Supreme Court? Why was Aminuddin Khan appointed CB chief? Why are senior judges with important constitutional experience? Are members of the JCP government not answer to these questions, and therefore do not want to supervise,” she said.
The lawyer said that objective framing criteria would require transparency and equity. In the judicial era after the 26th amendment, she said, the executive is not interested in transparency or equity while seeking to control the judicial power.
Shortly after the adoption of the 26th constitutional amendment, judge then SC then Syed Mansoor Ali Shah called to establish clear guidelines for the appointment and determination of the number of judges on the CBS.
“The Commission has already appointed and determined a certain number of judges from the Supreme Court and the High Court of the Sindh for the CBS in the absence of any mechanism or criterion in place,” wrote Shah in a letter of nine pages to the secretary of the JCP in December of the year.
“Consequently, there was no logic or reason to support the appointment and determination of the number of judges for the CBS.” He declared that the appointments under articles 191a and 202a of the Constitution could not be made in the void, and that the JCP must first establish objective criteria thanks to the proposed rules.
Judge Shah suggested that such criteria may include the number of constitutional judgments reported by a judge, including dissection or additional tickets, while serving on larger benches that have heard significant constitutional affairs
No rule has been drawn up to regulate CBS practice and procedure.
Article 191a (6) says that notwithstanding everything that contained in the Constitution but subject to the law, the judges appointed under the clause (1) can make rules regulating the practice and the procedure of the CBS.
This provision reflects that CB judges will supervise the rules concerning the regulation of the benches.
However, Judge Amicin Khan said that the word “May” had been used in this provision, which shows that the framework of the rules is not compulsory.
According to the press release of November 20, 2024 of the Supreme Court, the registrar SC was responsible for preparing the draft rules regulating the practice and procedures of the CBS in consultation with Judge Muhammad Ali Mazhar, with the final project which will be examined by the approval committee.
We learn that a SC judge argued that the new rules should be approved by CB judges.
