In a letter dated December 4, 2024, Justice Syed Mansoor Ali Shah has formally requested the Hon'ble Chief Justice of Pakistan and Chairperson of the Judicial Commission of Pakistan, Justice Yahya Afridi, to postpone the scheduled meeting of the Judicial Commission on December 6, 2024.

The meeting was to consider nominations for the appointment of Additional Judges to the High Courts of Sindh and Peshawar.

In his letter, Justice Shah raised several constitutional concerns that necessitated the postponement.

He highlighted that the legitimacy of the 26th Constitutional Amendment, which restructured the Judicial Commission, is still under challenge in the Supreme Court.

Over a dozen petitions against the Amendment are pending, and a ruling against its validity would render any actions taken by the reconstituted Commission, including the nominations/appointments of additional judges in various high courts, null and void.

Justice Shah stressed that proceeding with the appointments before the resolution of these petitions could undermine public confidence in the judiciary and waste resources.

He called for an urgent hearing of the petitions challenging the Amendment before the Full Court to settle the question of the Commission's legitimacy.

Justice Shah noted that the Judicial Commission's failure to establish rules of procedure for evaluating the fitness of judicial nominees as mandated by the Constitution further complicates the situation. Without these rules, he argued, the appointment process could be perceived as unconstitutional and potentially lead to a mistrust of the Commission's actions.

The senior puisne judge further suggested that, until these procedural rules are put in place, the matter of appointing judges should be postponed to avoid potential constitutional violations and public skepticism about the integrity of the process.

“It is imperative that these matters, being of paramount constitutional and public importance, are heard and decided before any further actions are taken by the newly constituted Commission under the challenged Constitutional Amendment. I have already brought this reservation to the notice of the Commission in its previous meetings and it has been so recorded in the minutes of the meetings. (ii) It is pertinent to note that clause (3) of the newly added Article 191A of the Constitution bars the hearing of the matters specified therein by any Bench of the Supreme Court other than a Constitutional Bench but does not bar the Full Court of the Supreme Court from hearing any matter, including petitions filed under Article 184(3) of the Constitution,” Masnoor Ali Shah said.

The letter reads: “The distinction between the Full Court and the Benches of a Court is well established and explicitly recognised in Article 203J (2)(c) & (d) of the Constitution. However, if your lordship has any doubt regarding this constitutional position, the same may also be judicially decided by the Full Court of the Supreme Court before addressing the merits of the said petitions.”

“Without prejudice to the above objection, it is also pointed out that there is a constitutional impediment to the making of appointments of Judges by the Commission. Clause (4) of Article I75A of the Constitution expressly mandates the Commission to make its rules of procedure, "including the procedure and criteria for assessment, evaluation and fitness for appointment of Judges",” he wrote in the letter.

“In the absence of such rules, any proceedings undertaken by the Commission for the appointment of Judges would be unconstitutional.

“In view of this constitutional position, when the previous Commission was established through the 18th Constitutional Amendments, its first act was to make its Rules of 2010.

“Without first making rules prescribing criteria for the assessment and evaluation of the fitness of eligible persons, the nominations for the appointment of Additional Judges in the High Courts are likely to create a public perception that the majority of the Executive in the Commission is attempting to pack the courts--an impression that must be dispelled.

“Therefore, it is just and proper that until the rules of procedure, "including the procedure and criteria for assessment, evaluation and fitness for appointment of Judges", are made by the Commission under clause (4) of Article 175A of the Constitution, the matter of appointment of Judges should be postponed,” Justice Mansoor Ali Shah said.