Despite framing rules for the new Judicial Commission of Pakistan (JCP), the merit-based appointment of superior court judges remains the biggest challenge for the judiciary.

Lawyers express concern that with the passage of the 26th Amendment, political parties’ influence has grown in the appointment process, leading to a situation where either stakeholders will compromise, or the JCP will decide appointments regardless of competence.

Former Sindh High Court Bar Association (SCBA) president Barrister Salahuddin Ahmed has said that the appointment of judges by the JCP should be a carefully considered evaluation of the legal acumen, integrity, and credentials of each candidate balanced against the institutional needs of every court.

He said that there was certainly a need to improve and better structure the process prior to the 26th Amendment.

“After the Amendment, however, and looking at all the nominations that have been made for different high courts; it is clear that it has become a free-for-all elections accompanied by lobbying among candidates proposed by judges, candidates proposed for their political affiliations and candidates proposed by some JCP members at the behest of intelligence agencies. The rules framed do not provide for proper scrutiny, and given the post-26th Amendment composition of the JCP, it seems clear that candidates proposed by political parties and intelligence agencies shall enjoy primacy,” says Barrister Salahuddin Ahmed.

Advocate Hafiz Ehsaan Ahmad Khokhar commented that the major legal shift in the composition and functions of the judicial commission was made by amending Article 175A of the Constitution dealing with the appointment and elevation in the superior judiciary through the recent 26th Constitutional Amendment, and by further allowing all members of the judicial commission to put their nominations for such appointment process. Since 2010, however, this was only the prerogative of the chief justice concerned.

He further stated it had always been emphasised prior to this amendment that the appointment and elevation of judges should be streamlined and transparent to all stakeholders of justice and bar associations of Pakistan. It was through this transparency that parliament would be able to reach such a composition process.

However, Khokhar stated that though the amendment has been recently introduced, reservations have also been simultaneously raised from certain quarters on initiating such a process of nominations. “However, now it is legal, and the constitutional responsibility of the JCP, to decide and recommend such nominations among the present list in its maiden meeting.”

He added the commission must decide who has the best legal background, is respected in the legal fraternity due to their professional work, and maintain a solid legal standing with a sizeable brief of cases and a good number of reported judgments both before the high courts and the Supreme Court.

Khokhar also stated that the appointment of capable judges was the need of the hour. He again stressed that this was the responsibility of the Judicial Commission of Pakistan.

The lawyer concluded that the appointment of able judges must be seen as a sacred trust bestowed upon the JCP by the Constitution.

“The sole objective is the supremacy of law and instant justice without fear and favour to the people of Pakistan, resulting in a better standing of the judiciary among the other countries of the world.”