Who gets to join the constitutional benches?

 

KARACHI: With the Judicial Commission of Pakistan meeting on Tuesday regarding judges for the constitutional benches, questions about judge eligibility, provincial representation, and procedural nuances have come up, with some legal experts also pointing to unresolved matters of seniority, appointment sequence, and the interplay between the commission and bench formation.

Chief Justice Yahya Afridi has called the first meeting of the Judicial Commission of Pakistan (JCP) on Tuesday, November 5 to discuss appointing judges for the Supreme Court’s constitutional benches. The Tuesday meeting will focus on establishing the JCP’s secretariat and selecting judges for the constitutional benches. The commission was recently restructured to include parliamentary members following the 26th Constitutional Amendment which introduces reforms allowing a parliamentary committee to select the CJP. The reforms also enable the creation of constitutional benches in the Supreme Court and the high courts.

Now that the constitutional benches are being created, what judges will get to be part of them? How does the eligibility work in this case? And are there still any loopholes the commission may have to look out for?

Supreme Court advocate Basil Nabi Malik explains that Article 191A and Article 202A -- inserted via the 26th Amendment -- state that constitutional benches shall comprise judges of the Supreme Court and high courts respectively. In essence, he says, “this indicates that the JCP shall be appointing judges from the existing roster of judges in the Supreme Court or high courts”.

But the amendment also talks about there being equal representation of the provinces in the constitutional benches. Does this mean that additional judges may be added for the sole purpose of serving on the constitutional benches?

Malik says that can “only happen if those judges are appointed in the Supreme Court by the JCP first. Then they can be considered for the constitutional bench”.

Barrister Ali Tahir adds that, “while the Judicial Commission is tasked with making appointments on the basis of equal representation of provinces, the term ‘may’ has been used in the amendment, suggesting that the goal of equal representation from all provinces is not absolute”.

How the process works, explains Tahir, is that since a minimum of five judges is required for any constitutional bench, the Judicial Commission has the discretion to convert five or more judges into a constitutional bench if deemed appropriate. Interestingly, according to Tahir, “it is possible that the entire Supreme Court could be organised as a single constitutional bench, which could then be divided into various sub-benches”.

There has been much talk about whether the two senior judges of the Supreme Court -- Justice Mansoor Ali Shah and Justice Muneeb Akhtar -- will be part of the constitutional bench or not. On this, Supreme Court advocate Hafiz Ahsaan Khokhar says that essentially it will all boil down to the majority’s decision in Tuesday’s Judicial Commission meeting. He personally is of the opinion that “we may see the constitutional bench starting [in seniority] from Justice Aminuddin”.

However, Khokhar is quick to add that this is really in the hands of the commission -- the JCP can easily nominate the CJP to be part of the constitutional bench and even vote in Justice Shah and Justice Akhtar.

Regarding the Judicial Commission, post the 26th Amendment, the commission’s political members are being perceived to hold more power. Given that for now -- apart from the PTI -- the other two larger parties are allies, their representatives are likely to vote on the same page.

In a situation where the five judicial members put forth the name of a judge, it would be easy for the parliamentary and non-judicial members to vote any name down.

Legal experts also point out that nothing in the legal text really prevents a judge who is part of a constitutional bench from also hearing regular cases.

For high courts, there is a similar process but as Basil Nabi Malik points out, “Article 202A, dealing with establishing constitutional benches in the high courts, is not effective until a resolution is passed by the pertinent provincial assembly”.

There is one more question that can be raised during the formation of the Judicial Commission. Barrister Tahir asks: “if the entire constitutional bench is composed of the most senior judges, then will the fifth senior-most judge automatically become a member of the Judicial Commission?”

He adds that there are other questions too such as: “does the commission need to appoint a judge first to the constitutional bench and then should the judge sit on the commission and then form the constitutional bench?”