Islamabad:
A sub -committee for the Legal Commission for Pakistan (JCP) led by Justice Jamal Khan Mandokhail could not develop criteria for choosing judges for constitutional benches (CBS), as most members had the opinion that the constitution did not allow it to do so.
The committee with five members held a meeting on Thursday, August 21. Other members included the Attorney General for Pakistan (AGP) Mansoor Awan, Senator Farooq H Naek (from Treasury Benches), Senator Ali Zafar (from opposition benches) and Pakistan bar Council (PBC) Representative Ahsan Bhoon.
Chief Justice of Pakistan (CJP) Yahya Afridi had previously formed two committees led by Justice Mandokhail to prepare draft rules for the annual judicial evaluation of right -wing judges as well as criteria for selecting judges for CBS.
According to sources, the members of the meeting committee considered under the proposed rules for developing criteria for the selection of CB judges.
They said three members – AGP Awan, PBC’s Bhoon and Senator Naek – opposed the framing of rules referring to constitutional ban.
Senator Ali Zafar disseminated with the majority perception. He was of the opinion that the rules must be framed to regulate the discretion of JCP members. Despite prolonged discussion, majority members were not convinced of framing rules. Later, the case was referred to JCP again.
Attorneys are shared on the framing of rules.
A senior lawyer claimed that rules should be framed in the light of several Supreme Court judgments. However, the government is expected to secure a majority in JCP to oppose the transition to framing criteria for choosing judges for constitutional benches.
Since the adoption of the 26th constitutional amendment, the judges of the Supreme Court and Sindh High Court’s constitutional benches are appointed without a structured selection process.
There is a perception that the government has been successful in excluding older judges who can question the government in any high -profile case from CBS.
The government has been fully pleased with the execution of the Supreme Court CB, which maintained the trial against civilians in military courts, approved the transfer of judges from various high courts to Islamabad High Court and overturned the SC decision, which had given PTI reserved for seats after the 2024 parliament’s election.
Lawyers have also raised questions about wisdom and logic behind the nomination of a particular set of judges to CBS, pointing out that judges who are perceived as critical of the current regime are often excluded.
Attorney Rida Hosain expressed surprise that a judge who was only a few days ago could be nominated for a CB, while several senior Supreme Court judges with extensive constitutional expertise were not. In the absence of clear criteria, she noted, such nominations occur arbitrarily.
She said the government’s interpretation of the constitution is both self -service and wrong. “There is nothing in the 26th amendment that stops the framing of rules to nominate judges to CBS.
In fact, the government’s position supports the case against the 26th amendment. The government believes that there should be an absolute discretion in nominating judges, which effectively allows judges to be nominated for complete political reasons that have nothing to do with competence. “
Rida declared that the government will have to justify the nominations that have been made so far.
“Why was Justice Ali Baqir Najafi nominated for CB the same week he spent oath in the Supreme Court? Why is justice Aminuddin Khan been nominated the leader of CB? Why are senior judges with significant constitutional experience of being excluded? Government members of JCP have no answer to these questions and therefore does not want to hit criteria,” she said. “
The lawyer said the framing of objective criteria would require transparency and justice. In the after 26th amendment, as the legal era said, the executive is not interested in transparency or justice as it seeks to control the judiciary.
Shortly after the passage of the 26th constitutional amendment, SC Senior Puisne -Judge Syed Mansoor Ali Shah had invited to establish clear guidelines to nominate and determine the number of judges at CBS.
“The Commission has already nominated and established a number of judges by the Supreme Court and Sindh High Court for CBS in the absence of any mechanism or criteria in place,” Justice Shah wrote in a nine-page letter to the JCP secretary last December.
“Therefore, there has been no logic or reason to support the nomination and decision of the number of judges for CBS.” He said that nominations under Articles 191a and 202a in the Constitution cannot be made in a vacuum and that JCP must first establish objective criteria through the proposed rules.
Justice Shah suggested that such criteria could include the number of reported constitutional judgments written by a judge, including dissenter or additional notes, while serving on larger benches that heard significant constitutional cases
No rules are framed for regulating CBS practices and procedure.
Article 191a (2).
This provision reflects that CB judges will hit rules for regulating benches.
However, justice Aminuddin Khan said the word “may” has been used in this provision showing that rules, framing are not mandatory.
Under the Supreme Court’s press release on November 20, 2024, the SC registrar was tasked with drafting draft rules that regulate practice and procedures for CBS in consultation with Justice Muhammad Ali Mazhar, with the final draft to be reviewed by the committee for approval.
It is learned that a SC judge had claimed that new rules should be approved by the CB judges.
