Chief Justice Qazi Faez Isa has summoned on September 13 a meeting of the Judicial Commission of Pakistan (JCP) to consider amendments to the Commission's rules from 2010.
"It may be mentioned that the rules of the Judicial Commission of Pakistan were enacted in 2010, and heeding to the persistent demand of bar councils and bar associations to make the process of nomination transparent and democratic, I had constituted a committee to propose amendments to the said rules," Chief Justice Isa said in a letter sent to the chief justices of all the four high courts.
"The said committee submitted its report, and a meeting was called on May 3, 2024, for the consideration of its recommendations," CJP Isa said, adding, "I wanted the meeting to proceed, however, the meeting was postponed in deference to the wishes of the majority. To consider the recommendations of the committee, a meeting has again been called."
Chief Justice Isa has also asked the chief justices of the four provincial high courts to commence their search for potential candidates who will be nominated as additional judges in the respective high courts.
The letter stated that the Supreme Court comprises 16 judges and the chief justice for a total of 17 judges. "After a period of almost two and a half years, the Supreme Court has started functioning at its full strength on June 25, 2024. The Shariat Appellate Bench of the Supreme Court was also made functional after the appointment of a second aalim (scholar) member on July 29, 2024, and it heard cases after a break of four years," the letter added, reminding of the efforts under CJP Isa.
The top judge further stated that having fulfilled his responsibilities, he now looks to all the chief justices to attend to the working of their respective high courts.
"Therefore, I would request you to kindly commence your search for potential candidates to be nominated as additional judges of your respective courts. If you consider it appropriate, not all existing vacancies, if there are more than five, be considered immediately, as I am sure you too would want that proper deliberation takes place. The paramount object is to nominate the best possible candidates," said the chief justice in his letter.
In May, the JCP's rule-making committee ended without a conclusion after Federal Law Minister Azam Nazeer Tarar requested to defer the matter, revealing that the federal government was considering constitutional amendments to change the current structure of elevating judges of the superior courts.
Drafting rules
Last year, in its meeting of October 26, 2023, the JCP had appointed Justice Syed Mansoor Ali Shah and former Judge Manzoor Malik, as chairman and co-chairman, respectively, of the special committee tasked with drafting amendments and updating criteria governing the elevation of judges to the superior judiciary.
The committee also comprised senior puisne judges from all high courts, along with the attorney general for Pakistan and the law minister, totaling 15 members. Subsequently, the committee convened two meetings to deliberate on the proposed amendments to the JCP rules.
The committee finalised a revised draft of the rules after incorporating input from female judges and judges from the lower judiciary, which will now be presented to the Judicial Commission for review and final approval before its implementation.
The committee finalised the draft rules of procedure for the commission to appoint judges of constitutional courts in the country while complying with the collegial and inclusive decision-making process enshrined in Article 175-A of the Constitution.
The draft rules cover the following amendments in the 2010 Rules:
- Process for convening meetings of the commission and making decisions therein;
- Initiation of nomination(s) [for judges] in the Supreme Court;
- Initiation of nomination(s) [for judges] in the High Courts;
- Adequate representation of the district judiciary and the Bar for elevation;
- Criteria for selection of candidates to be appointed as judges to the Supreme Court and the High Courts;
- Confirmation of Additional Judges in the High Courts; and
- Establishment of a secretariat of the commission, appointing a secretary and other staff thereto.
The committee received insightful suggestions and recommendations from its co-opted members, including Supreme Court's Justice Ayesha A. Malik, and Justice Musarrat Hilali, Sindh High Court's Justice Kausar Sultana Hussain, Islamabad High Court's Justice Saman Rafat Imtiaz, Punjab District and Sessions's retired judge Mahrukh Aziz, Khyber Pakhtunkhwa's former District and Sessions Judge (retired) Hayat Ali Shah, Sindh's former District and Sessions Judge (retired) Imdad Hussain Khoso, Balochistan's former District and Sessions Judge (retired) Rashid Mehmood, Advocate in Supreme Court Hina Jilani, International Commission of Jurists' Legal Advisor Reema Omer, and Public Sector Governance Expert Rafiullah Kakar.
"For the appointment of a judge of the Supreme Court, the chairperson shall propose three persons for each vacancy as per criteria prescribed and convene a meeting of the commission for deliberation not later than 15 days before the occurrence of the vacancy. Thereafter, the commission shall nominate, by majority one person against a vacancy to the Parliamentary Committee under clause (8) of Article e175A of the Constitution," read the JCP's proposed rules.
As for the appointment of the chief justice of a high court, it was suggested that the chairperson — CJP —convene a meeting of the commission for deliberation on the names of the five most senior judges of that high court one month before the vacancy occurs.
"Thereafter, the commission, shall nominate, by majority, one person to be appointed as the chief justice of a high court to the Parliamentary Committee under clause (8) of Article 175A of the Constitution."
The proposed rule for the appointment of judges of the high courts says that the chairperson (CJP) shall call for nominations from the selection committee concerned not later than 60 days and convene a meeting of the commission for deliberation on the nominations not later than 30 days, before the vacancy occurs.
Thereafter, it stated that the commission shall nominate, by majority, one person against a vacancy to the Parliamentary Committee under clause (8) of Article 175A of the Constitution.
It was also stated that the chairperson would put forward two nominees for the appointment of the chief justice of the Federal Shariat Court.
The commission would then convene a meeting to deliberate on these names at least a month before the vacancy emerges.
Subsequently, the commission would, by majority vote, nominate one individual to assume the position of chief justice of the FSC, forwarding the nomination to the parliamentary committee in accordance with clause (8) of Article 175A of the Constitution.
"For the appointment of the judges of the Federal Shariat Court, the chairperson shall, in consultation with the chief justice of the FSC and the senior-most judge, nominate two persons for each vacancy and convene a meeting of the commission for deliberation on those names not later than 15 days before the occurrence of the vacancy. Thereafter, the commission, shall nominate, by majority, one person against a vacancy to the Parliamentary Committee," the draft read.
High court judges
The committee has suggested a selection committee should be formed for each high court. This selection committee will consist of the concerned chief justice, the senior-most judge of that high court and one representative of the provincial bar council.
Until the nominated representative of the Islamabad Bar Council is made a member of the commission by an amendment in clause (6) of Article 175A of the Constitution, the appointment of judges of the Islamabad High Court, the selection committee shall only consist of the chief justice and the most senior judge of that court.
The committee stated that the chief justice of the respective high court would serve as the chairperson, while the court's registrar would act as the secretary of the selection committee. The secretary would assist the committee and its members in fulfilling their duties and maintaining a record of its proceedings.
In relation to establishing criteria, the proposed draft states that to assess an individual's suitability for a judicial appointment, primary emphasis shall be placed on the criteria delineated in the judicial oath outlined in the Constitution.
This entails the individual's capacity to dispense justice impartially, in accordance with the law, devoid of fear, favouritism, personal affection, or prejudice.
Additionally, the candidate's professional qualifications, experience, communication abilities, efficiency in managing workload, integrity, independence, objectivity, and temperament to treat individuals from diverse backgrounds fairly shall all be taken into consideration.
"Provided that in nominating judges of the high courts for appointment as a judge of the supreme court, the seniority among judges of a high court as well as inter se seniority of judges of different high courts shall also be considered."
Regarding the representation of advocates and members of the district judiciary, it stated that the selection committees shall ensure a fair representation of advocates and members of the district judiciary when initiating nominations for appointment of judges of the high courts.
The proposed draft also states that if the commission meetings are not convened or the nominations are not called by the chairperson within the prescribed period, the majority of the members of the commission may, in case of appointment of judges of the high courts, call for nominations from the selection committee concerned and convene the meeting of the commission for deliberation on the nominations.