ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa’s effort to improve the working of the Judicial Commission of Pakistan (JCP) has stirred a long-forgotten debate on the discretionary and absolute power to nominate candidates for elevation to the superior judiciary.

In recent letters to the JCP’s 28 members, the CJP highlighted how the body had to consider the appointment of high court judges from among lawyers and district and sessions judges, as well as the confirmation of additional judges, and asked members to forward their suggestions. Their input, he said, should include whether the potential candidates should also be interviewed prior to their elevation or not.

Whenever the Judicial Commission Rules Comm­i­ttee convenes — a meeting is likely in the near future — the thorny issue of who shall have the right to nominate candidates for elevation to the superior judiciary will definitely be taken up, a source said.

It is also likely that the JCP members will be cons­iderate of the long-standing demand of bar councils, who are of the view that all members of the rules committee are equal and a clear criterion is needed on how to elevate judges from the district judiciary to the high court.

They also seek to make the nomination and selection process transparent by diluting the power of the CJP, as well as the respective chief justices of high courts.

Bar members believe that Article 175A (2) of the Constitution states that the CJP will be chairman of the commission and nothing more, and it does not empower the CJP to nominate someone unilaterally.

Nowhere is it written that the JCP may consider only the nominees forwarded by the CJP or the chief justices of high courts, and bar councils have been saying that the practice of using discretionary and absolute powers in initiating nominations, without consulting other members of JCP, should be discouraged.

JCP rules

The 2010 rules were framed by the JCP during the tenure of former CJP Iftikhar Muhammad Chaudhry. These empowered the top adjudicator to initiate nominations in the commission for appointment against a vacancy in the superior judiciary.

Rule 4 empowers the chairman, who happens to be the CJP, to regulate the proceedings of the commission, which can call for any information or record required from any person or authority for the purpose of carrying out its functions.

Under Rule 5(4), the proceedings of the commission will be held in camera besides the chairman under Rule 5(5) can constitute one or more committees of members as deemed necessary.

The Pakistan Bar Coun­cil has also been highlighting that the rules committee should be headed by the senior puisne judge instead of the CJP.

The last meeting of the rules committee was held on March 9, 2022. At that meeting, former CJP Umar Ata Bandial had expressed the desire of maintaining objectivity in the process of the judges’ appointment.

He had stressed the need for pursuing the task of setting out criteria, which should not be complicated, rather simple and straightforward, to make assessments, evaluations and then selection of judges for appointment to high courts and the Supreme Court.

Published in Dawn, October 7th, 2023