Judiciary must be independent: SC judge

Justice Mandokhail responds to Justice Shah's letter on judicial appointments

ISLAMABAD:

Justice Jamal Khan Mandokhail has stated that the judiciary must be independent and impartial as per mandate of the Constitution

"Let me make it clear that I am also of a firm view that it is the mandate of the Constitution that the judiciary must be independent and impartial.

"Members of the judiciary should be competent and honest persons," Justice Mandokhail said in reply to a letter by Supreme Court's senior puisne judge Syed Mansoor Ali Shah.

In a five-page letter addressed to Justice Mandokhail, the chairman of the Judicial Commission of Pakistan (JCP) rules-making committee, Justice Shah on December 12 raised serious concerns about the absence of formalized rules for the appointment of judges to constitutional courts.

Justice Shah noted that the judiciary had enjoyed primacy in the appointment process of judges in Pakistan. However, the vital balance had been fundamentally disturbed under the 26th Constitutional Amendment, which now grants a majority to the executive in the JCP, the constitutional body responsible for elevation of judges to superior courts.

He had further warned that the unprecedented shift in the composition of the JCP posed grave risks, including the potential for political appointments and the packing of courts with judges lacking all ideological commitment to the rule of law.

In his two-page reply to Justice Shah's letter, Justice Mandokhail said the JCP committee constituted for making the draft rules is committed to evolve the best mechanism while framing these rules in order to achieve the desired goal.

"Next meeting of the committee is scheduled to be held on Monday (December 16) and certainly your suggestions will be considered." Justice Mandokhail noted that after the 26th Amendment to the Constitution, the JCP has been reconstituted.

"As per the Constitution, the commission is vested with the power to make rules. To do the needful, in its last meeting held on December 6, the commission unanimously authorized the Chairman/Chief Justice of Pakistan (CJP), Yahya Afridi, to constitute a committee to prepare draft rules.

"The CJP, with your consultation, constituted the committee for the purpose vide notification dated December 6, of which, I was nominated as the chairman, with M/s Mansoor Usman Awan, Attorney General for Pakistan, Barrister Syed Ali Zafar, Senator, Farooq Hamid Naek, Senator and Akhtar Hussain, ASC as members.

"The committee has been tasked to draft rules relating to the regulation of procedure including the procedure and criteria for assessment, evaluation and fitness for appointment of judges under clause (4) of Article 175A of the Constitution.

"In this behalf, two meetings of the committee have already been held, which deliberated upon the framing of draft rules. In the meetings, the committee also took into consideration the JCP Rules, 2010."

Justice Mandokhail told Justice Shah that "incidentally", most of the suggestions/requirements highlighted by him in the letter had already been incorporated in the draft rules, which he had personally shared with him prior to replying to his letter.

"Please take note that the committee is tasked just to propose the draft rules and to place it before the Commission [JCP] for final approval of the same, in its forthcoming meeting to be held on December 21," he added.

Justice Mandokhail noted that he had come to know that Justice Shah had proposed names of the candidates for their elevation to the Lahore High Court and Islamabad High Court.

"I suggest that you may propose these names or more, after approval of the rules by the JCP, so that proper elevations are made."

Justice Mandokhail, however, appreciated and welcomed Justice Shah's suggestions, which, he said, would be considered in the next committee meeting on December 16.

Referring to the issues raised by Justice Shah regarding the 26th Constitutional Amendment, Justice Mandokhail said he would not like to comment on the matter as it is a sub judice matter.

He said the institution of judiciary belongs to the citizens of Pakistan and that he expected that every member of the JCP would thoroughly go through the draft rules and freely submit his suggestions.

"The commission is competent to approve as it is, to amend or to reject the draft rules," he said.

He said he was waiting for any other suggestion by Justice Shah before the cut-off date of framing of draft rules. "I hope the concerns shown by you through your letter on my part are redressed," he added.