The Judicial Commission of Pakistan (JCP)’s rule-making committee on Tuesday invited public feedback on proposed rules for the appointment of judges to superior courts.
“Feedback and suggestions from the general public are encouraged and will be placed before the Commission for consideration at its forthcoming meeting scheduled for the 21st of December, 2024. All comments and feedback must be submitted by the 20th of December, 2024, at the following email address: jcprules@scp.gov.pk,” said the JCP’s rule-making committee.
On December 6, the JCP unanimously authorized Chief Justice of Pakistan (CJP) Yahya Afridi to form a committee responsible for drafting the rules. Following this, the rule-making committee was formed. Headed by Justice Jamal Khan Mandokhail, the committee comprises Attorney General for Pakistan Mansoor Awan, Senator Ali Zafar, and Pakistan Bar Council (PBC) member Akhtar Hussain.
The committee held its meeting on December 16 and prepared its draft rules concerning the regulation of procedures for the assessment, evaluation, and fitness of judges appointed to superior courts.
Committee Chairperson Justice Mandokhail expressed gratitude to all the esteemed members of the committee for their efforts in drafting the proposed rules of procedure for the appointment of judges to the Supreme Court, the Federal Shariat Court, and the High Courts. He also extended thanks to all those who submitted their valuable suggestions and proposals to the committee.
Proposed Rules
Regarding the initiation of the appointment process, the draft rules propose that the secretariat shall maintain a complete record of all anticipated and actual vacancies of judges in superior courts. The chairperson, after examining the record of pendency in the Supreme Court, shall determine the number of vacancies for which nominations are to be invited.
It is suggested that for the appointment of judges to the High Courts or the Federal Shariat Court, the chairperson, in consultation with the respective chief justice, shall determine the number of vacancies and the required expertise in a particular field of law for which nominations are to be invited.
The draft states that anticipated vacancies refer to those expected to occur within three months.
The draft rules also suggest criteria for determining merit. Professional qualifications and experience, legal ability, efficiency, communication skills, integrity, and independence, along with any other matter deemed relevant by the Commission, shall be taken into consideration in assessing the merit of a nominee. “Any person who directly or indirectly approaches a member to influence the initiation of his or her nomination shall be disqualified from consideration for appointment as a judge,” the proposed rules suggest.
The members shall ensure proper diversity and fair representation of advocates and judicial officers for the appointment of judges. In the case of judicial officers, in addition to the fitness determined in accordance with the prescribed criteria, their seniority in judicial service shall also be considered. For the purpose of initiating the nomination of a judicial officer, a member may, through the secretary, request any report regarding the service record of the judicial officer concerned from the respective High Court.
It is further proposed that the JCP’s secretariat shall maintain the performance record of each additional judge on a quarterly basis.
The JCP shall consider four factors when deciding on the confirmation of an additional judge. These factors include the quantity and quality of judgments delivered and other judicial work performed, compliance with judicial ethics and conduct during the tenure, including the temperament, concerns (if any) not identified at the time of the initial appointment, and any other relevant considerations that may affect the fitness of the judge for confirmation.
According to the proposed rules, any member of the JCP may make nominations for the Commission for appointment to vacancies.
The proposed rules further suggest that the appointment to the Supreme Court shall be made with due regard to ensuring fair representation from all High Courts. It adds that nominations for appointments to the Supreme Court shall be made from the five most senior judges of the High Court concerned. “Nominations for the appointment of the Chief Justice of a High Court shall be made from among the three most senior judges of that High Court,” the draft rules propose.
“A nominee whose nomination is not approved by the Commission shall not be disqualified from being re-nominated for future vacancies, unless disqualified on grounds of integrity, moral turpitude, or other substantive concerns,” it adds.
For verification, it is further proposed that the secretariat, upon receiving the nominations, shall obtain reports from the relevant authorities regarding the verifiable information provided in the nomination forms.
The secretariat shall also obtain reports from at least two civil intelligence agencies on the general antecedents of the nominees. However, in the case of adverse remarks, the officers making such remarks shall sign them, stating their name and designation.
“The secretariat shall prepare two separate lists of nominees for the consideration of the Commission: the first containing the names of advocates, including law officers, with the names in the list arranged in descending order of age, starting with the eldest; and the second containing the names of judicial officers, with the names in each list arranged in order of their seniority in judicial service.”
Regarding convening of the JCP’s meeting to deliberate and finalize, it is proposed that the chairperson shall convene the meeting and the JCP’s secretary shall notify all members at least fourteen days before the meeting is scheduled, along with providing the agenda and supporting materials.
“The quorum for the meeting shall be the majority of the total membership of the Commission,” the draft rules propose.
“The nominees shall be present at the meeting of the Commission during the consideration of their nominations; provided that the Commission shall decide, on a case-to-case basis, which of the nominees are to be interviewed.”
It is further proposed that the voting on the nominations shall be conducted either by secret ballot or by a show of hands as determined by the Commission.
“In the case of a secret ballot, if there are five vacancies, each member shall cast only five votes. Any votes cast beyond the initial five shall not be considered,” the draft rules propose.
It adds that a nominee must secure the votes of a majority of the total membership of the JCP. If no nominee secures the required majority for a vacancy, the Commission shall hold an additional round of voting among those nominees who secured the highest number of votes in the first round, but not exceeding two nominees for each vacancy required to be filled.
It says that if, in the second round of voting, no nominee secures the required majority, the voting process shall stand closed, and fresh nominations may be called in accordance with these rules.
“Unless otherwise directed by the Commission, all proceedings of the Commission shall be conducted in camera to maintain confidentiality. Only the decisions, and not the deliberations, of the Commission shall be published in a summarized form on the official website or webpage of the Commission,” the proposed rules state.
“In the case of the appointment of judges to the High Courts and the Federal Shariat Court, the secretary shall forward the names of the selected nominees after the Medical Board certifies that they are physically and mentally capable of performing the duties of a judge. For the purpose of conducting the medical examination of the selected nominees, the chairperson shall constitute a standing medical board for a specified period.”
The JCP is scheduled to meet on December 21, where the draft rules shall be tabled.