With several petitions pending against the 26th Constitutional Amendment and hence putting his appointment under a cloud, Chief Justice of Pakistan Yahya Afridi has summoned a meeting of the Judicial Commission of Pakistan (JCP) for Tuesday, November 5, afternoon. Legal experts are, thus, divided over the constitutional status of the Commission and its new composition.
Tuesday's meeting of the JCP will be the first after the 26th constitutional amendment was passed and a new Chief Justice of the Supreme Court was appointed per it last month.
Following the 26th amendment, the composition of the JCP was altered to include members of the treasury and opposition benches were added into the Commission. The presiding judge, the senior-most judge among the constitutional benches, was also included as a member of the Commission.
CJP Afridi heads the 13-member JCP comprising three senior-most Supreme Court judges, including Justices Mansoor Ali Shah, Munib Akhtar and Aminud Din Khan. The Commission also includes the presiding judge and the senior-most judge of the Constitutional Benches, who have yet to be nominated. Other members include Law Minister Azam Nazeer Tarrar, Attorney General for Pakistan Mansoor Usman Awan and a representative of the Pakistan Bar Council. Pakistan Muslim League-Nawaz (PML-N) MNA Sheikh Aftab and Leader of Opposition in the National Assembly Omar Ayub have been nominated from the lower house of Parliament for the Commission.
Pakistan Peoples Party (PPP) Senator Farooq H Naek, Leader of Opposition in Senate Shibli Faraz and a former member of the Senate, Roshan Khursheed Barocha, have been nominated.
Both Ayub and Faraz belong to the opposition Pakistan Tehreek-e-Insaf (PTI).
A section of lawyers, however, has pointed out a serious anomaly in the composition of the Commission prior to its maiden meeting, noting that the Commission is without a crucial member, the presiding judge.
Senior lawyer and constitutional expert Barrister Salahud Din believes that the JCP does not legally exist and it cannot act due to the poor drafting of the 26th Constitutional Amendment. To be complete, he said that the new JCP must include the senior-most member of the Constitutional Bench of the Supreme Court. Since the bench has yet to be formed, the JCP must first create it.
"Now, the government says this doesn't matter because Article 175A(3D) allows the JCP to act even in case of 'vacancy or absence'," said Barrister Salahud Din.
"But the Supreme Court has earlier held 'existence of a vacancy implies that the office exists'," he added. However, he maintained that in this instance, the very office does not exist and that it was not a case of "absence" of an office-holder either.
"Lacuna in amendment makes it legally unimplementable," noted Barrister Salahud Din.
"Now, if the judiciary could supply words to Constitution to cover legislative omission that could resolve [the matter]."
He further noted that the top court has now decisively and rightly held in the Article 63-A case that judges cannot supply words to the Constitution to effect what they deem was the legislative intent.
However, a former additional attorney general and a senior lawyer, Tariq Mehmood Khokhar, supported Chief Justice Yahya Afridi's decision to summon the JCP's meeting.
Khokhar told The Friday Times that under clause 14 of Article 175A of the Constitution, "No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of existence of a vacancy therein or of the absence of any member from any meeting thereof".
"Please note, under clause 8, the Commission decides by a majority of its total membership," stated Advocate Khokhar, adding that positive votes are required from at least seven members.
Summoning a meeting of the JCP reflects that CJP Afridi is not inclined to accept the opinion that the Commission does not exist. However, some JCP members could potentially raise the issue of the constitutionality of the Commission in its first meeting.
Likewise, another senior constitutional expert, Hafiz Ehsaan Ahmad Khokhar, while talking to The Friday Times said that the JCP meeting will be held for the first time with a new composition after the passage of the 26th Constitutional Amendment. He said that as the presiding judges and other judges of constitutional benches of the Supreme Court and all the High courts will be selected as per the agenda circulated for the upcoming JCP meeting, therefore there will be no illegality for holding such a meeting in their absences because of this extraordinary situation.
Hafiz Ehsaan further explained that the presiding judge for the Supreme Court and high courts, respectively, will only be selected by the members during the first meeting of the JCP. Thus, there will be no question of any illegality in holding such a meeting without a presiding judge.
Another legal expert, Advocate Umer Gillani, also spoke about the extraordinary situation.
He told The Friday Times that the fact that there is no minimum quorum prescribed in the Constitution for holding meetings of the JCP means that all members have to be present for a meeting to be effective.
"Since there is no presiding judge of the Constitutional Court at present, this cannot happen," he said.
"If a strict view was to be taken, it would mean that JCP cannot ever meet," maintained Advocate Gillani, adding, "This, I would like to submit with the utmost humility, is not a reasonable interpretation."
He further said that a more reasonable interpretation would be that as long as the remaining 12 members of the JCP are in attendance and a clear majority (seven) agrees, any decision of the Commission would be valid.
A former attorney general said this was a core provision, but poor drafting had unnecessarily created confusion.
"Is this how you draft constitutional amendments?" he complained.