In a significant move, Supreme Court Justice Syed Mansoor Ali Shah has called for the postponement of the Judicial Commission of Pakistan (JCP) meeting scheduled for December 6, 2024. The meeting is set to deliberate on nominations for additional judges in the Sindh and Peshawar High Courts. Justice Mansoor Ali Shah’s appeal highlights grave concerns over the constitutional validity of the newly reconstituted JCP under the 26th Constitutional Amendment, which is currently under judicial scrutiny.
In a detailed letter addressed to the Chief Justice of Pakistan, who also chairs the JCP, Justice Mansoor Ali Shah stated, “The constitutional validity of the 26th Constitutional Amendment has been challenged before the Supreme Court by numerous petitioners from diverse segments of society. Any actions or decisions taken by this new Commission, including judicial appointments, may be rendered null and void if the amendment is struck down, causing serious embarrassment to the judiciary and wasting public resources.”
Justice Mansoor Ali Shah emphasised that proceeding with the meeting without resolving the pending legal challenges could undermine public confidence in the judiciary. He noted that a Full Court hearing on these challenges was crucial, as it would determine the legitimacy of the restructured Commission.
The letter also underscored procedural deficiencies in the Commission's functioning. Justice Mansoor Ali Shah pointed out that the Commission has not yet adopted rules of procedure and criteria for assessing the fitness of judicial nominees, as mandated by the new clause (4) of Article 175A of the Constitution.
He argued, “Without first making rules prescribing criteria for the assessment and evaluation of the fitness of eligible persons, the nominations for the appointment of additional judges in the high courts are likely to create a public perception that the majority of the Executive in the Commission is attempting to pack the courts—an impression that must be dispelled.”
Justice Mansoor Ali Shah further contended that the lack of such rules violates the Constitution, which explicitly requires the JCP to frame its procedural guidelines before proceeding with judicial appointments.
Addressing concerns about transparency, Justice Mansoor Ali Shah criticised the JCP for not releasing the minutes of its meetings to the public. He cited Article 19A of the Constitution, which guarantees citizens the right to access information on matters of public importance, and argued that this lack of transparency undermines trust in the judiciary.
“Releasing the minutes of the meetings where judges are appointed to constitutional courts enhances public confidence in the judiciary. It dispels suspicions of favoritism, ensures meritocracy, and upholds the principle of fairness in judicial appointments,” Justice Mansoor Ali Shah asserted.
Justice Mansoor Ali Shah reiterated his earlier proposal, supported by Justice Munib Akhtar, to convene a Full Court to hear the pending petitions against the 26th Constitutional Amendment. He lamented the inaction on this matter, stating, “These matters, being of paramount constitutional and public importance, must be resolved before any further actions are taken by the newly constituted Commission.”
He added that any ambiguity regarding the constitutional mandate for such a hearing should itself be resolved by the Full Court.
In his concluding remarks, Justice Mansoor Ali Shah called for a postponement of the JCP meeting until the pending petitions are decided and the Commission adopts rules of procedure as required by the Constitution. He warned that moving forward under the current circumstances risks compromising the judiciary's independence and credibility.
“The decisions of the Commission in performance of this function are of paramount public importance. Any misstep could not only embarrass and weaken the institution but also erode public confidence in the judiciary of Pakistan,” Justice Mansoor Ali Shah cautioned.
This letter comes amidst ongoing debates about the 26th Constitutional Amendment and its implications for judicial independence and the separation of powers.