ISLAMABAD: Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah, senior judges and members of the Judicial Commission of Pakistan (JCP), said on Saturday that the delay in filling vacancies of judges in the Supreme Court gives rise to unwanted rumours of petty politics, lobbying and quid pro quo appointments, which not only undermine the institution but also seriously impair the neutrality and transparency of the appointment process.
In a letter addressed to the Chief Justice of Pakistan, Justice Umer Ata Bandial, being the Chairman of the Judicial Commission of Pakistan, Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah urged the CJP to immediately call the meeting of JCP so as to honour their constitutional obligation and uphold their oath under the Constitution.
The judges said that the responsibility of timely filling the vacancies in a constitutional court falls primarily on the shoulders of every member of JCP.
“Any inordinate delay in the performance of this function, except for an unavoidable cause, which is not present in the present case, is both unfortunate and undesirable.”
The judges maintained that “five vacancies have piled up since February, 2022, over a period of almost nine months.”
“We as members of the JCP have time and again requested you to hold a meeting of the JCP to fill these vacancies but our meetings with you in this regard have ended in vain”, the judges recalled, adding their senior colleague and member of the JCP (Justice Qazi Faez Isa) has already written to him (CJP) in this regard on Sept 28, 2022.
In addition, Justice Tariq Masood and Justice Mansoor Ali Shah said that in order to actualise the constitutional obligation under Article 175A(8) of the Constitution, meetings of the Judicial Commission of Pakistan (JCP) should be automatically scheduled at the earliest on the occurrence of any vacancy in the Supreme Court of Pakistan. The judges said the JCP is not the Supreme Court of Pakistan but an independent constitutional body that must have a separate and independent functional secretariat, headed by a professional secretary.
The judges said: “This is essential to honour the constitutional obligation and keep the constitutional courts fully functional in order to ensure speedy dispensation of justice across the country and protect the right to access justice for the people of Pakistan”.
We have taken an oath under the Constitution to “preserve, protect, and defend the Constitution of the Islamic Republic of Pakistan,” they said.
“We are sure your honour is aware of the legal position enunciated by the Supreme Court of Pakistan in Al-Jehad Trust Case (1996) that ‘permanent vacancies occurring in the offices of judges normally should be filled in immediately [but] not later than 30 days’ from the date of the occurrence of the vacancies, and that it is a ‘constitutional obligation’ of the Judicial Commission of Pakistan to ensure that the constitutional offices do not remain vacant and the vacancies are filled in without any delay,” the judges said.
The judges said that the inordinate delay of almost nine months in this case must be urgently addressed first, adding that to swiftly move forward to fill the current vacancies, we had proposed in our meetings to either (i) consider the five chief justices of the five high courts against the five vacant posts or (ii) consider the top two judges from every high court and put these options to vote in the next meeting of the JCP.
“This is the best way forward in the current circumstances, till such time that more sophisticated selection criteria and Constitution-compliant rules are framed,” Justice Tariq Masood and Justice Mansoor Ali Shah said.
“We humbly urge you to immediately call the meeting of the JCP so as to honour our constitutional obligation and to uphold our oath under the Constitution,” Justice Tariq Masood and Justice Mansoor Ali Shah concluded.
