26th Amendment disturbed judiciary’s position: Justice Mansoor

ISLAMABAD: Senior pusine judge of the Supreme Court Justice Syed Mansoor Ali Shah has said that the judiciary had enjoyed primacy in the appointments process of the judges in Pakistan; however, this vital balance had been fundamentally disturbed under the 26th Constitutional Amendment which, now grants a majority to the executive in the Judicial Commission of Pakistan (JCP).

“This unprecedented shift in the composition of the JCP poses grave risks, including the potential for political appointments and the packing of courts with judges lacking an ideological commitment to the rule of law,” Justice Mansoor wrote to Justice Jamal Khan Mandokhail, chairman of the JCP Rule-Making Committee for the appointment of judges.

Justice Mansoor stressed for framing well-thought-out rules for selection of best judges to the constitutional courts of Pakistan, adding that any appointment made without a well-defined and transparent framework of rules would undermine public confidence in the judiciary, compromise its independence, and erode its ability to function as a neutral arbiter of justice.

The senior judge urged the Rule Making Committee that to select the best judges that would promote the rule of law requires a focus on objective, fair and forward-looking criteria.

He expressed grave concerns regarding the formulation of rules for the appointment of judges to the constitutional courts in Pakistan saying it is a matter of utmost significance to the independence of the judiciary, rule of law and democracy in our country.

Justice Mansoor said that Clause 4 of Article 175A of the Constitution expressly mandates the Commission to make its rules of procedure, including the procedure and criteria for assessment, evaluation and fitness for appointment of judges. “In the absence of such rules, any proceedings undertaken by the Commission for appointment of Judges would be unconstitutional,” he wrote.

The senior judge provided the Rule-Making Committee a list of key requirements for its consideration including integrity and ethical standards comprising unquestionable personal and professional integrity, demonstrated commitment to honesty, impartiality and rule or law as well as absence of corruption or any unethical conduct.

The senior judge intimated the Rule-Making Committee that for newly appointed judges, consider a probationary period where performance is monitored before confirmation besides establishing mechanisms for evaluating judges’ performance post-appointment to ensure ongoing adherence to high standards.

“By adopting this comprehensive approach, the JCP can ensure a fair, robust, and merit-based selection process that aligns with the principles of judicial independence and rule of law,” he wrote.

He further said that the judiciary of Pakistan is passing through one of its weakest moments in our history, and the risks of executive overreach are higher than ever, adding that the absence of robust rules and criteria would allow outside influence to undermine the judiciary by facilitating appointments that serve partisan interests rather than upholding constitutional values.

“Therefore, it is critical that no appointment to the constitutional courts proceeds until these rules are finalised and adopted by the JCP,” Justice Mansoor wrote, adding that this approach was essential not only for ensuring the independence of the judiciary but also for enhancing public trust in the courts as bastions of justice, the rule of law, and democratic accountability.

He further said that any hurriedness in the matter by the JCP could seriously undermine and weaken the judiciary for years to come.

The senior SC judge expected that the Rule-Making Committee would recognise the urgency and importance of the matter and act decisively to ensure that the process was both fair and resistant to outside influence.

“Looking forward to the draft Rules in the next meeting of the JCP fixed on 21 December, 2024 and I understand that unless the Rules are finalised by the JCP we cannot initiate the process of appointment of judges”, Justice Mansoor concluded.