'Your suggestions already incorporated in JCP draft rules', Justice Mandokhail tells Justice Shah

• Justice Mandokhail refuses to comment on 26th Amendment.
• Says Justice Shah's suggestions to be considered in Dec 16 meeting.
• "Draft rules to be tabled before JCP for final approval on Dec 21."

Justice Jamal Khan Mandokhail on Saturday responded to concerns raised by Justice Mansoor Ali Shah over the Judicial Commission of Pakistan's proceedings, saying that "most suggestions tabled by the Supreme Court’s senior puisne judge have already been incorporated in the draft rules which he had also personally shared with him prior to his letter".

Justice Mandokhail replied to Justice Shah's letter in which he noted that the 26th Constitutional Amendment "fundamentally disturbed the vital balance in the appointments process of the judges in Pakistan".

Justice Shah, in his letter two days ago, noted that the "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".

Therefore, the SC senior judge said, it is critical that no appointment to the constitutional courts proceeds until these rules are finalised and adopted by the JCP. "Any hurriedness in the matter by the JCP can seriously undermine and weaken the judiciary for years to come."

Justice Mandokhail, who is a chair the JCP's committee constituted by Chief Justice of Pakistan (CJP) to prepare draft rules of the national commission for judges' appointments, said that the commission has been reconstituted after the 26th Amendment "of which, you and I are the members, along with others".

He added that the commission, which is vested with the power to make rules, had unanimously authorised the CJP to constitute a committee to prepare draft rules in its last meeting held on December 6.

Justice Mandokhail said that he was nominated as the chairman of the committee formed by the chief justice, "with your [Justice Shah] consultations" while its members included Attorney General for Pakistan Mansoor Usman Awan, Senator Barrister Syed Ali Zafar, Senator Farooq Hamid Naek, and Akhtar Hussain.

"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."

He detailed that 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 Judicial Commission of Pakistan Rules, 2010, the SC judge wrote.

He also stated that most of the suggestions highlighted by Justice Shah's have already been incorporated in the draft rules, which, he had personally shared with him prior to his letter under reply.

Justice Mandokhail told Justice Shah that the committee is tasked just to propose the draft rules and to place it before the commission, adding: "[…] for final approval of the same, in its forthcoming meeting to be held on December 21, 2024."

"I have also come to know that you have proposed names of the candidates for their elevation to the Lahore High Court, and Islamabad High Court."

Mandokhail suggested the SC senior puisne judge to "propose these names or more, after approval of the rules by the Commission, so that proper elevations are made".

Welcoming Justice Shah's suggestions, Justice Mandokhail said: "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. For this purpose, the committee constituted for making the draft rules is committed to evolve best mechanism while framing these rules in order to achieve the desired goal."

He added that the committee is scheduled to meet again on Monday, December 16 and certainly Justice Shah’s suggestions will be considered.

Justice Mandokhail, however, refused to comment on Justice Shah's concerns on the 26th Amendment, saying: "The matter is sub judice before the court."

"The institution of judiciary belongs to the citizens of Pakistan and I expect that every member of the commission will thoroughly go through the draft rules and is free to submit any suggestion before its approval."

"The commission [JCP] is competent to approve as it is, to amend or to reject the draft rules," Justice Mandokhail concluded.

Prior to his letter to Justice Mandokhail, Justice Shah had written a letter to the chief justice last week and sought the postponement of the JCP meeting, as numerous petitions challenging the 26th Constitutional Amendment were still pending before the apex court.

However, CJP Yahya Afridi made it clear that the commission did not have the scope to discuss the 26th Constitutional Amendment.