ISLAMABAD – In a letter dated December 4, 2024, Justice Syed Mansoor Ali Shah formally urged the Chief Justice of Pakistan (CJP), Justice Yahya Afridi, who also serves as the Chairperson of the Judicial Commission of Pakistan, to postpone the meeting scheduled for December 6, 2024. The meeting was set to consider nominations for appointing Additional Judges to the High Courts of Sindh and Peshawar.
Justice Shah expressed constitutional concerns over proceeding with the appointments, particularly highlighting the ongoing challenge to the legitimacy of the 26th Constitutional Amendment, which restructured the Judicial Commission. With over a dozen petitions challenging the amendment still pending in the Supreme Court, Justice Shah warned that any actions taken by the reconstituted Commission, including the proposed judicial appointments, could be rendered void if the Amendment is ruled unconstitutional.
He emphasized that pushing ahead with the nominations before resolving the petitions could damage public trust in the judiciary and waste resources. Justice Shah called for an urgent hearing of the petitions to clarify the Commission’s legitimacy.
Additionally, he noted that the Judicial Commission has yet to establish the mandatory rules of procedure for evaluating the fitness of judicial nominees, as required by the Constitution. Without these rules, the appointment process could be seen as unconstitutional and lead to mistrust in the Commission’s actions.
Justice Shah further recommended that the matter of appointing judges be postponed until the procedural rules are in place to prevent potential constitutional violations and ensure transparency. He stressed the importance of addressing these constitutional issues before any further actions are taken by the Commission, which was restructured under the challenged Amendment.
The senior judge also referenced previous meetings where he had raised these concerns, which were recorded in the minutes. In his letter, Justice Shah explained that clause (3) of the newly added Article 191A of the Constitution restricts the hearing of such matters to a Constitutional Bench, but noted that the Full Court of the Supreme Court could hear the petitions in question.
Justice Shah also pointed out a constitutional barrier to the appointment process, referencing Article 175A, which mandates the Judicial Commission to make rules of procedure for assessing the fitness of judicial candidates. Without these rules, he argued, any appointments made would be unconstitutional.
He concluded by asserting that without clear and established criteria, the nomination of additional judges could lead to public perceptions of political interference in the judiciary, a concern that must be addressed to maintain confidence in the process.
Thus, Justice Mansoor Ali Shah urged the postponement of judicial appointments until the necessary rules of procedure are created by the Judicial Commission, in compliance with constitutional requirements.
