Supreme Court Justice Mansoor Ali Shah, who is also a member of the Judicial Commission of Pakistan (JCP), has expressed grave concerns regarding the composition of the Commission and the increased powers granted to the executive in the appointment of judges following the 26th Amendment.
In his letter to Justice Jamal Khan Mandokhail, Chairman of the Rule-Making Committee for Appointment of Judges, Justice Shah outlined key concerns regarding the judicial appointment process.
Justice Shah emphasised that the appointment of judges to constitutional courts is of paramount importance to the independence of the judiciary, the rule of law, and democracy in Pakistan. He noted that, historically, the judiciary has enjoyed primacy in the judicial appointment process. However, he lamented that the 26th Constitutional Amendment has fundamentally disrupted this balance by granting a majority to the executive in the JCP.
Justice Shah expressed deep concern over this unprecedented shift in the composition of the JCP, warning that it could lead to political appointments and the selection of judges who may lack an ideological commitment to the rule of law.
It is important to note that Clause (4) of Article 175A of the Constitution explicitly mandates the Commission to establish its own rules of procedure, which should include the criteria and processes for assessing, evaluating, and determining the fitness of judicial candidates. Justice Shah argued that without such rules, any proceedings carried out by the Commission to appoint judges would be unconstitutional.
In his letter, Justice Shah further emphasised that appointments made without a clear, transparent framework of rules would undermine public confidence in the judiciary, compromise its independence, and weaken its ability to serve as a neutral arbiter of justice. He stated, "The selection and appointment of judges must be structured and well-reasoned, and should never be left vulnerable to arbitrary or politically motivated decisions."
Justice Shah called on the Rule-Making Committee to focus on creating objective, fair, and forward-thinking criteria to select the best candidates, which would safeguard judicial independence and ensure merit-based appointments. He warned that, given the current state of Pakistan's judiciary, executive overreach posed a significant risk.
Without robust rules and criteria, Justice Shah feared that outside influence could undermine the judiciary by facilitating appointments that serve partisan interests rather than upholding constitutional values. He stressed that no appointments to constitutional courts should proceed until these rules are finalised and adopted by the JCP.
This approach, Justice Shah argued, is vital not only for preserving the independence of the judiciary but also for enhancing public trust in the courts as pillars of justice, the rule of law, and democratic accountability. He cautioned that any rush to make appointments could weaken the judiciary for years to come.
Justice Shah urged Justice Mandokhail to recognise the urgency and importance of this matter and to act decisively to ensure that the process is both fair and resistant to external influence. He insisted that until the rules are finalised by the JCP, the process of judicial appointments cannot begin.
It is worth mentioning that the JCP is scheduled to meet on December 21 to consider the appointments of additional judges to the Islamabad High Court (IHC) and Lahore High Court (LHC).
Key Requirements for the Appointment of Judges Proposed by Justice Mansoor Ali Shah:
1. Integrity and Ethical Standards
- Unquestionable personal and professional integrity.
- Demonstrated commitment to honesty, impartiality, and the rule of law.
- Absence of corruption or unethical conduct.
2. Legal Expertise
- Deep understanding and mastery of the law, including constitutional and statutory law.
- Extensive judicial, academic, or professional experience in legal practice.
- Ability to interpret the law in a principled, coherent, and innovative manner.
- Exceptional analytical, reasoning, and decision-making skills.
- Strong writing abilities to produce clear, concise, and well-reasoned judgments.
- Familiarity with procedural and evidentiary rules.
3. Judicial Independence
- Strong ability to resist external pressures from powerful institutions, individuals, or public opinion.
- A record of defending judicial independence and upholding the separation of powers.
4. Fairness and Impartiality
- Demonstrated commitment to treating all parties equally, regardless of status, race, gender, or affiliation.
- A history of avoiding bias or favoritism in previous decisions or legal opinions.
5. Courage and Resilience
- Willingness to take bold decisions, even in the face of potential backlash from powerful entities.
- Strength to uphold justice in politically charged or high-profile cases.
6. Intellectual Curiosity and Adaptability
- Eagerness to learn about emerging areas of law and adapt to societal changes.
- Interest in global legal trends and the ability to apply international legal principles where appropriate.
7. Public Confidence
- A record that inspires public trust in the judiciary as an institution.
- Ability to connect judicial decisions with societal values and explain complex legal principles to the public.
8. Demeanor and Collegiality
- Strong interpersonal skills and the ability to work collaboratively with fellow judges.
- Professional temperament, patience, humility, and respect for differing opinions.
9. Commitment to Judicial Efficiency
- Proven ability to handle complex caseloads and deliver timely judgments.
- Commitment to ensuring accessible and expeditious justice.
10. Diversity
- Recognition of the value of diversity on the bench in terms of gender, ethnicity, and professional background.
- Understanding of how diverse perspectives enhance judicial deliberations and public trust.
Justice Shah has also suggested several methods for assessing judicial candidates, including the completion of detailed application forms, interviews with behavioral questions, feedback from peers and stakeholders, and ongoing oversight for additional judges.