- The 26th Amendment grants a majority to the JCP executive: Justice Shah.
- According to him, the new composition of the JCP presents risks for “political appointments”.
- “In the absence of rules, the JCP’s procedures would be unconstitutional.”
Senior Puisne Justice of the Supreme Court Justice Mansoor Ali Shah has expressed concern over the proceedings of the Judicial Commission of Pakistan (JCP) in the absence of its rules, saying the recently passed 26th Constitutional Amendment has “fundamentally disrupted the vital balance in appointments.” process of judges in Pakistan.
“The judiciary enjoys primacy in the process of appointing judges in Pakistan, but this vital balance has been fundamentally disrupted by the amendment, which now grants the executive a majority in the commission,” he said. -he declared in a letter addressed to judge Jamal. Khan Mandokhail – who heads the five-member committee appointed to draft the rules.
Last week, Justice Shah — in a letter addressed to the chief justice — sought postponement of the JCP meeting as many petitions challenging the 26th constitutional amendment were still pending in the apex court. However, CJP Yahya Afridi made it clear that the committee did not have the opportunity to discuss the 26th constitutional amendment.
In his letter today, the Puisne Judge cited clause (4) of Article 175A of the Constitution, which mandates the Commission to establish its rules of procedure, “including the procedure and criteria for “assessment, evaluation and suitability for the appointment of judges”.
“In the absence of such rules, any procedure undertaken by the Commission for the appointment of judges would be unconstitutional,” he argued.
Justice Shah noted that the “unprecedented change” in the composition of the JCP poses serious risks, including the possibility of “political appointments and filling the courts with judges lacking an ideological commitment to the rule of law.”
“Any appointment made without a well-defined and transparent framework of rules will undermine public confidence in the judiciary, compromise its independence and erode its ability to function as a neutral arbiter of justice,” the letter reads .
He stressed that the selection and appointment of judges must be “structured and well-motivated and never exposed to arbitrary or politically motivated decisions.”
Under these circumstances, the judge said, it becomes imperative to craft well-thought-out rules that provide the necessary filters to select the best of the best, thereby safeguarding judicial independence and ensuring selections based on merit.
He also regretted that Pakistan’s judiciary is going through one of the weakest moments in its history and the risks of executive overreach are higher than ever.
“The absence of robust rules and criteria will allow outside influence to undermine the justice system by facilitating appointments that serve partisan interests rather than uphold constitutional values,” he added.
Therefore, the judge said, it is essential that no appointments to the constitutional courts be made until these rules are finalized and adopted by the JCP. “Any rush by the JCP in this matter can seriously undermine and weaken the justice system for years to come.”