The meeting was intended to consider nominations for the appointment of Additional Judges to the High Courts of Sindh and Peshawar.
Justice Shah raised several constitutional concerns that warranted the delay.
He emphasized that the legitimacy of the 26th Constitutional Amendment, which restructured the Judicial Commission, is still being challenged in the Supreme Court.
More than a dozen petitions against the Amendment are pending, and if the Court rules against its validity, it could render any actions taken by the reconstituted Commission, including the nominations and appointments of additional judges, null and void.
Justice Shah stressed that proceeding with the appointments before resolving these petitions could undermine public confidence in the judiciary and waste resources.
He urged an urgent hearing of the petitions challenging the Amendment before the Full Court, in order to settle the issue of the Commission’s legitimacy.
The senior judge also pointed out that the Judicial Commission has yet to establish the necessary procedural rules for evaluating the judicial nominees, as mandated by the Constitution.
Without these rules, he argued, the appointment process could be perceived as unconstitutional, leading to public skepticism about the integrity of the Commission’s actions.
Justice Shah recommended that until the procedural rules are in place, the matter of appointing judges should be postponed to avoid potential constitutional violations and public mistrust.
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“It is crucial that these issues, which are of significant constitutional and public importance, be addressed before any further actions are taken by the newly constituted Commission under the challenged Constitutional Amendment,” Justice Shah wrote.
He noted that he had previously raised these concerns in Commission meetings, and they had been recorded in the minutes.
The letter further highlighted that clause (3) of the newly added Article 191A of the Constitution prevents the Supreme Court from hearing matters related to the Amendment except by a Constitutional Bench.
However, the Full Court is still authorized to hear such matters, including petitions filed under Article 184(3) of the Constitution, Justice Shah emphasized.
Justice Shah also pointed out a constitutional barrier to the appointments process, stating that Clause (4) of Article 175A mandates the Commission to establish rules of procedure, including criteria for assessing the fitness of judicial candidates.
Without these rules, any proceedings undertaken by the Commission would be unconstitutional, he asserted.
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He referred to the 18th Constitutional Amendment, which required the previous Judicial Commission to establish its rules of procedure before undertaking any judicial appointments.
In the absence of such rules, Justice Shah warned that the nomination of Additional Judges might create a perception of political influence, undermining public trust in the judicial process.
Justice Mansoor Ali Shah urged that until the Commission develops the necessary rules of procedure for assessing judicial nominees, the appointment process should be postponed to safeguard the integrity of the judiciary.
