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Justice Fakhruddin G. Ebrahim on the Judicial Crisis

Posted on February 14, 2010
Filed Under >Fakhruddin G. Ebrahim, Law & Justice
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Justice (retd) Fakhruddin G. Ebrahim

(Justice (r) Fakhruddin G. Ebrahim is a respected jurist, former Justice of the Pakistan Supreme Court, former Law Minister, former Attorney General and former Governor Sindh. He released this public note in response to the current judicial crisis in the country.)

We are again faced with a judicial crisis – not a bonafide crisis but a crisis created for ulterior reasons.

Ostensibly the crisis is the elevation of chief justice for the Lahore High Court in the Supreme Court of Pakistan, the elevation of the next senior most judge Justice Saquib Nasir, as acting Chief Justice of Lahroe High Court (a la Zia ul Haq style).

Being of the view that more harm is done by ignoring seniority, which opens the door for exercise of discretion in principle, I am against seniority being ignored, particularly in judiciary.

My first reaction, therefore, was that the appointment of Chief Justice Lahore High Court to the Supreme Court and elevation of the next senior-most judge as Lahore High Court Chief Justice was justified.

I had assumed that in accordance with the Article 177 of the constitution, these appointments were made by the president after consultation with the Chief Justice of Pakistan, and that the president was bound by such consultations.

Was the Chief Justice of Pakistan even consulted?

We are in such a sorry state of affairs where there is a denial whether such a consultation took place between the two highest functionaries of state. The president’s spokesperson asserts that the consultation took place and is denied vehemently by the honorable Chief Justice of Pakistan.

There must be some documentary evidence to prove that such consultations took place. But much to our regret the people have been kept in the dark creating further controversy. With a poor credibility score of the government, the latter’s version will not be acceptable to the people.

Without consultation, these appointments, in contradiction to the binding recommendations of the Chief Justice of Pakistan remain invalid, being in violation of Article 177 of the Constitution.

To my mind, this issue, which is so obvious and cannot possibly become controversial, has a reason for other reason, namely, the appointment of judges in the High Courts. There are a large number of vacancies in all the High Courts which need to be filled on an urgent basis, in the interest of litigant public. There can be no controversy over the appointment of these judges. The government has, without cogent reason, evaded the issue of these appointments.

The procedure for the appointment of judges is clear cut. The Chief Justice of the High Court, in order to fill up vacancies, first consults with his colleagues and invites advocates and/or members of the lower judiciary, with a view to obtain their consent to become a judge. Even if there is one seat vacant, the Chief Justice of the High Court recommends two or three names which are forwarded to the provincial government. The limited function of the provincial government is to ascertain the antecedent of the candidate, and along with any adverse material, but without any deletions or additions of names, forwards the list to the Ministry of Law, which, with its comments, further forwards it to the Prime Minister.

Then starts the process of consultation between the Chief Justice and the Prime Minister and if a candidate has the concurrence of both the Chief Justices (High Court and Supreme Court), such a person is elevated to become the judge of the High Court. It may be noticed that neither the President nor the Prime Minister has a right to add to, or subtract, from the list of proposed candidates.

This is obviously correct for two reasons – firstly, the Chief Justices know better the competency of the candidate  secondly, this appointment is for an initial period of one year, to enable the Chief Justices to ascertain the ability and integrity of the judge.

I will repeat that a candidate whose appointment is confirmed by both the chief justices is binding on the government. In exceptional cases, the PM may give his reasons for his disagreement and the same may be reviewed by the chief justices. But the primacy remains with both the chief justices.

To my mind, the immediate controversy regarding the notifications elevating Lahore High Court Chief Justice and his elevation to Supreme Court is directly related to the government’s reluctance to initiate the process of appointment of Lahore High Court’s judges nominated by its Chief Justice.

Our past history, in matters of appointment of judges, has been chequered for it is public knowledge that the Executive has, more often than not, been interested in appointment of judges of its own choice, which in fact, seriously affects the independence of judiciary for the largest single litigant before the courts is the government.

We have fortunately evolved a procedure, which is not only fair and just, but, in public interest.
In the four HCs large number of judges remain un-appointed  for the last so many months only because of the undue obduracy and the expectation that the parliament will provide for another procedure for appointment of judges, to suit the executive.

In my humble opinion, the whole controversy must be resolved without further delay by appointing the judges in the HC in accordance with the Constitution.

In so far as the elevation of the judge from the LHC to fill up permanent position from Punjab in the SC is concerned, it should not be a pretext for delaying the appointments of judges to the Lahore High Court. We are urgently required in larger public interest for immediate appointments of judges as the litigants are suffering for no fault on their part.

40 Comments on “Justice Fakhruddin G. Ebrahim on the Judicial Crisis”

  1. HarOON says:
    February 14th, 2010 11:12 am

    This is a learned analysis from a learned man. To many others are trying to get into the personalities and politics, what we need to do here is to focus on the constitutional provisions and institutional integrity.

    Both Zardari adn Iftikhar Chaudhry need to focus on their constitutional responsibilities. Starting with the appointment of LHC judges and then following the process on the SHC appointment.

    As Adil Najam rightly wrote earlier, they should both stop playing this game of chicken with the country.

  2. AHsn says:
    February 14th, 2010 11:33 am

    “There must be some documentary evidence to prove that such consultations took place. But much to our regret the people have been kept in the dark creating further controversy. With a poor credibility score of the government, the latter’s version will not be acceptable to the people.”

    It is all very good procedure. But is there any constitutional obligation that the president should follow the advice and recommendation of the Chief Justice??

    If this clause does not exist then it is a big loop-hole in the constitution itself. Pakistani constitution is full of contradictory statements . By this constitution, Pakistan has become Islamic Republic of Pakistan. In Urdu translation the word republic is written as jamhooriat (Democratic). Any religious system of government is totally opposite to the Democracy where the people is supreme to govern itself and not the God Almighty.

    So, using and abusing the constitution itself becomes very constitutional.

    The man who gave this constitution to the people of Pakistan should be laughing in his tomb or wherever he is.

    AHsn

  3. Waheed says:
    February 14th, 2010 12:06 pm

    Things are going to get only worse. See this from Nawaz Sharif.

    ISLAMABAD: Pakistan Muslim League (PML-N) will not allow the government to go scot-free, the party chief Mian Nawaz Sharif warned terming President Asif Ali Zardari as the biggest danger to the democracy, Geo News reported Sunday.

    Addressing the packed hall of journalists after the party’s meeting, he said it seemed that the government does not accept the restored judiciary.

    The democracy never before faced such a great threat as now in the form of President Zardari, who has become the gravest danger to democracy, he said.

    The PML-N condemns the incident that occurred yesterday, as the event plunged the country in the uncertainty and the President House outgrew its limits, Sharif told.

    He said yesterday’s incident was an action re-play of November 3, 2007, adding the government is targeting the judiciary to safeguard its corruption in preference for their corruption to the respect for the judiciary.

    The Army should have the role stipulated in the Constitution, he said.

    Nawaz Sharif said he forcefully warned the government to ensure the supremacy of the Constitution, adding his party categorically rejects the autocratic method adopted by the government.

    He said the judiciary was resorted by the people not the government which only issued a notification, informing the journalists that he had told Prime Minister Syed Yousuf Raza Gilani a day before not to delay the implementation on the recommendations of judges’ appointments.

    However, the following day, something else surfaced, he added demanding the recommendations of the Chief Justice of Pakistan Justice Iftikhar Muhammed Chaudhry should be immediately put into action.

    Nawaz said the PML-N wants to make it abundantly clear to the government in unequivocal terms that it would not be allowed to go its way on judges’ appointments nor would it be spared the chance for corruption.

    ‘We can make harsh decisions in the coming days and will protest in and outside the Parliament and mobilize the masses. We will not allow anyone to spoil the institutions for personal motives,’ he said.

    Had the Charter of Democracy been implemented, then there would not have been these problems, he asserted demanding President Zardari to bring back to Pakistan his wealth siphoned off to Swiss accounts; this is the money hard-earned by the people of Pakistan.

    The country has been turned into a circus, he added.

    The people of Pakistan will take care of all affairs, the Army should not be dragged into them; nor should the Army get itself involved in such affairs, he said.

  4. Osman says:
    February 14th, 2010 12:08 pm

    It is fine to say that the controversy “must be resolved”. But how? I don’t see how that can happen unless one of them backs off and none is ready to do that. In some ways they are both just inviting the military in!

  5. Daktar says:
    February 14th, 2010 12:35 pm

    The real question right now is to figure out what the way out of this mess is.

    Either one of them steps back. But both are stubborn enough that they will not.

    Or both of them simultaneously step back. But, then what and how? So I think that is unlikely.

    Or someone other than then steps in. It is likely that military is right now figuring whether they will. I hope not. If Gillani had more guts maybe he should.

    Or we find a way both can declare victory. CJ by appointment of LHC judges according to procedure and Zardari by following process of consultation but getting the senior judge selected as is the norm.

    Overall, a bad situation. Hope someone has the sense to clean it up.

  6. Faria says:
    February 14th, 2010 12:58 pm

    If anyone seriously believes this issue is to do with the government attempting to hold up the constitution, then I seriously advise you to wake up!

    As Justice Ebrahim stated on television today, it may be a point of principle that elevation to the Supreme Court should be on seniority (I would question this principle), BUT THAT IS NOT THE CURRENT LAW. Therefore he stated the current recommendations are binding on the Executive. Therefore I hope people stop using personal opinion as the basis of defending the government.

    Lets get real. This is all about the NRO. The Swiss Court cases are like the grim reaper that will eventually catch up
    Zadari. He needs a pliant court to put the charges to rest. If we lucky he won’t succeed.

    He seemed to have no proble elevating all previous judges on the recommendations of the Chief Justice. Amazing how the judgement on the NRO has changed everything.

    He also had no problem in imposing Governor Raj. A real celebration of the supremacy of the constitution.

    If Zadari had succeeded in the appointments, the list of other judges to all benches would have been returned. Thereby another few months would pass as the government would have sat on the new recommendations. By that time they would have attempted to railroad (as part of the new 18th ammendment) the formation of the ‘judicial select committee’. If anyone thinks this will be a beneficial move to maintain the independence of the judiciary, they are sadly mistaken. Have people read the provision in the CoD for this commisssion? Does anyone believe the inclusion of Bar Association heads is a good idea? We all know that the upcoming Bar Association elections would be completly marred in corruption as each party would be trying to elect their representative.

    Therefore from a legal point of view (opinions on elevation aside), the government will have to back down.

    On a side issue, why on earth anyone still believes Zadari should be treated will kid gloves is beyond me. His history, and his current performance inicate the depth of this man. If you scratch beneath the surface, you truly and not figuratively come across a heart of ‘stolen’ gold.

    There is no threat to democracy, only to Zadari. For intelligent people to buy into the propaganda is doing more damage to Pakistan than anything.

    The sooner he is impeached the better, for PPP and Pakistan.

  7. Watan Aziz says:
    February 14th, 2010 1:41 pm

    Lets have more opinions published from both the scholars and former jurists. The more the merrier.

    A better informed public is the lubricant of democracy.

    Both the executive and the judiciary should make their positions public, along with all the correspondence and share their understanding about the process of “consultation”.

    After all, if both have done things by the book, there is nothing to hide.

    Sunshine is an amazing thing.

  8. Expat says:
    February 14th, 2010 1:45 pm

    I think, for a change, govt is correct in this case and CJ is on the wrong tracks.

    Some people may disagree that most senior person should be elevated to supereme court, but if CJ of Sup Court has an objection to elevation of Just. Shareef to Supreme court, he should give his reasons for doing so. You just cannot say that I do not want such and such person as judge of supereme court without giving any reason. Govt atleast has a basis for promoting Justice Shareef to Sup Court i.e. he is the senior most judge in high court. What reason has CJ got for rejecting him?

  9. BF says:
    February 14th, 2010 3:13 pm

    Just curious as to what is the source of this note…

  10. February 14th, 2010 4:53 pm

    Some comments from the ATP Facebook Page:

    - “He is exactly right!”
    - “Couldn’t agree more with the great jurist.”
    - “IFTAKHAR SAHAB TAKE GOOD SOMOTO, its good thing”
    - “I think we would all be happy to be rid of Mr Zardari. However, reading this article I cannot help but think that the honourable justice speaks not the whole truth!! First, elevation on the basis of seniority means that it may be at the expense of merit and second that the CJ is a consultee in this process and so his opinion cannot override the President’s. The appointment is not joint but by the President. On this basis, I can therefore conclude that the justice is misrepresentig the facts when he states that the President has acted unconstitutionally. I think the sad fact seems to be that all these characters (whether Zardari or the lawyers) are all acting in self intererest and are totally comfortable twisting the truth to suit their specific purpose at the time.”
    - “The best part in this situation is the start of dialogue, which makes democracy strong. I hope and pray to Almigthy Allah SWT that good will come out of this situation for Pakistan, ameen .”

  11. Watan Aziz says:
    February 14th, 2010 4:55 pm

    First, this is not a crisis, but a tempest in the teapot. True, the impact is on vacancies, but it seems the process will quickly take its course. Perhaps, this is why Pakistan needs a constitutional court.

    Next, I am delighted that there is this confrontation presently. Not only Pakistanis will get better laws, rules, etc. after this is done with, this is the best free legal education for the public at large. People need to know how their laws work or do not work. The only problem is the ignorant media, which is framing this as a personal issue. It is not. The system is broken. If there was a system, it would never been a dispute. The very fac there is a dispute means that there is a broken process. Pakistani people will be served well, if there is better and cleaner judicial process. It has been broken since day one. It needs major ‘fixin’ But I think people have a way of knowing what is going on with the media.

    Third, as long as there are no goons (Sharif) or no martial law (Sultan Musharraf), I would rather have the judiciary and the executive at odds with each other then see matters eye-to-eye. Pakistanis thought they would never see another Munir but found out about Dogar.

    And on the other side, Pakistan does not need another Shah. (He was both petty and vindictive.) The current CJ has amply demonstrated that he is not another Shah.

    I am hopeful, good will come out of this.

    It should.

    The sooner the better.

  12. banjara286 says:
    February 14th, 2010 11:01 pm

    with due respect, justice ibrahim, if the recommendation of the chief justice is indeed binding on the govt – as you state in your note – then let the constitution of pakistan be formally be amended to state that the appointments/promotions to the supreme court will be made by the cjp.

    i did not expect, indeed ia am extremely disappointed, that a person of your stature has decided to play cheap politics with this issue. please let us know in which other country in the world, the judicial appointments are made by the judiciary themselves.

  13. February 15th, 2010 5:09 am

    @banjara. Almost 60 years have passed! I think let the constitution run smoothly! India the country we criticize, their const. was ready within two years of independence. I say the real problem is in the separation of powers and that’s it! No country can thrive unless you let everything run smoothly and every department do its job.

  14. Watan Aziz says:
    February 15th, 2010 7:31 am

    ‘Curiouser and curiouser!’ Cried Alice.

    Perhaps Justice Ebrahim would like to extend his comments. It seems more that Article 177 is in dispute.

    Briefly,:
    177 Appointment of Supreme Court Judges. (Elevation Dispute)
    182 Appointment of ad hoc Judges. (Ramday)
    191. Rules of Procedure. (Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.)
    193. Appointment of High Court Judges.
    202. Rules of Procedure (High Courts)

    But perhaps the core dispute may be Article 175(3): The Judiciary shall be separated progressively from the Executive within [fourteen] years from the commencing day.

    This article of the constitution has yet to be fully implemented.

    It is clear, constitution permits the SC and HCs to set their own rules of procedure. That the appointments will be made by President with consultation of the Courts. That 175 demands a separation of courts from the executive. That, if the parliament will not act (and they have not), the courts could (and should) interpret the constitution under 175 for any dispute with executive and create new laws for the smooth functioning of the judiciary and distance it further from the overbearing executive.

    Ironically, if there were to be another aspiring usurper, the democratically elected executive would wish that the courts were more independent, more assertive and have the support of the public.

    The long lens of history demands nothing but an independent judiciary.

  15. Adnan says:
    February 15th, 2010 8:50 am

    Just the other day SC heard the point of view of some bureaucrats whose promotion to grade 22 had been challenged by some other bureaucrats. In fact the court has already given its verdict which is still to be made public. The complainants’main argument was that because of their seniority they should have been promoted first. It appeared from the news reports as if CJP was sympthatic to the cause of superceded officers. Now the same court is trying to tell us that seniority is not important!! If CJP can pick and choose, why not the Prime Minister (or President)??

  16. Zain says:
    February 15th, 2010 11:03 am

    Banjara286:
    “please let us know in which other country in the world, the judicial appointments are made by the judiciary themselves.”

    It is irrelevant to ask ‘which other nation appoints its judiciary this way’ – the question here is about the process that the Pakistani constitution outlines for judicial appointments.

    Whether you disagree with the method or not, Pakistani institutions and individuals are bound to respect the Court’s interpretation of the constitution. The judiciary is the sole body to interpret the constitution.

    Now the case of appointments has been taken up by the SC, and the SC will issue a ruling detailing its interpretation of the constitution on judicial appointments. Like it or not that ruling has to be accepted – that is final.

    If the government, people and our elected representatives think that the current interpretation of the process of judicial appointments is flawed, then the GoP and our elected representatives can bring about a constitutional amendment clarifying or amending the constitution to reflect their views on judicial appointments.

    One cannot just go around doing XYZ, even though the SC rules XYZ unconstitutional, just because in YOUR OWN opinion XYZ is the correct way to go.

    The SC is the final authority on interpreting the constitution, and that needs to be recognized by other institutions and Pakistani citizens.

  17. Watan Aziz says:
    February 15th, 2010 11:16 am

    Seniority is important where there are procedures and orders that need to be followed.

    Armed Forces is classic example. No one can question the authority and execute the command.

    Civil service does not escape this either. It is not based on merit (within the same type of service) but the important criteria is seniority.

    I personally think that there should be a grade level up to which there should be seniority. After that, it should be based on merit. IOW, people should get only so much promotion based on length of service and after that they should move to other pastures or put up with it. At certain level, merit is important to run the affairs. But these rules need to be known and not changed for one service only. This could happen if it is uniformly applied across all services.

    The elected representatives, on the other hand, draw their strength not from merit or seniority but by the will of the people (assuming the elections are fair) . And this is why they get to leave (some dragged out) when their term is over.

    And lower courts should be run on seniority as well.

    But superior courts need people with capacity to execute justice. Seniority has little to do with the capacity. Here intellect, reasoning, independence and ability to deliver justice is paramount. And especially, the position of Chief, being administrative, requires more than being a judge.

    Where a judge can deliver the final decision and make it the law of the land, independence alone forces a judge not to follow orders. He cannot and should not be bound by seniority. And seniority has a lot to do with following orders. And, with seniority and orders to be followed, he then has no incentive to deliver good justice. He can do whatever and know he will continue to move up. The last thing you want is an incompetent judge for your case, whose entire qualification is seniority. Toe the line.

    The Trust decision, was a bad decision, that looked good when court was being played with. It may still look good considering that the judiciary is not out of the range of an overbearing executive.

    And as pointed out in another post, the Trust decision had nothing to do with the elevation of HC judge, but only the appointment of the CJP. Hence, with this expanded understanding, the Trust decision may still have its life left for the SC.

    But to automatically move the HC judges up the chain simply based on seniority is not the best way.

    A better way needs to be found.

  18. banjara286 says:
    February 15th, 2010 1:55 pm

    @zain,
    yes, the current procedure is unclear and flawed and it needs to be amended. this is exactly what i am asking for myself. however, amending it is not supreme court’s business; it is the parliament’s.

    the court can interpret the rules all it wants; it can stay an executive decision, but it cannot force its own decision in its place. frankly, it is ludicrous that one of the party to the dispute is also the ultimate arbiter, creating a clear conflict of interest, and if i (or someone else) object to it, then it should be summarily waved aside as being irrelevant.

    lastly, let me remind you that even the decisions of the cj have been blatantly subverted in the past, as the case of justice sajjad ali shah clearly demonstrates. can i ask you if the primacy of the supreme court depends on the season, or is that question also irrelevant?

    guess who is singing the song of the primacy of the supreme court today?

  19. Zain says:
    February 15th, 2010 2:30 pm

    banjara286:

    You are implying to me a selectivity when it comes to holding the Supreme Court as the final authority on interpreting the constitution – nowhere have I suggested that past violations of the Supreme Court’s judgments are valid.

    That Nawaz Sharif chose to violate the Supreme Court and even encourage mob attacks is condemnable, but we are not talking about Nawaz Sharif here, so other than to establish that that the Supreme Court should be respected by ALL Pakistani citizens and all political parties, this point is irrelevant – past crimes cannot be used as justification for current crimes, otherwise we will never get out of the cycle of the Supreme Court being subverted.

    “yes, the current procedure is unclear and flawed and it needs to be amended. this is exactly what i am asking for myself. however, amending it is not supreme court’s business; it is the parliament’s.”

    The Supreme Court is not amending the constitution nor have I seen the Supreme Court suggest that it shall amend the constitution – why raise a strawman?

    The Supreme Court is however interpreting the constitution as it relates to judicial appointments, which is solely the SC’s prerogative and jurisdiction. If the court interprets the constitution to suggest that ‘consultation’ means ‘binding’ then that is that. It will then be up to parliament to go amend the constitution to change ‘consultation’ to clearly mean a ‘non-binding discussion’, if parliament so desires.

    “the court can interpret the rules all it wants; it can stay an executive decision, but it cannot force its own decision in its place. frankly, it is ludicrous that one of the party to the dispute is also the ultimate arbiter, creating a clear conflict of interest, and if i (or someone else) object to it, then it should be summarily waved aside as being irrelevant.”

    But the SC can force its own decision if that decision is in accordance with the constitution and strikes down something that is unconstitutional. Interpreting whether something is constitutional or not is the job of the Supreme Court, and if something is declared unconstitutional, of course the decision of the SC has to be enforced – when a decision is not enforced, deliberately, by the relevant institutions (usually the government) that is when you have a crisis.

    And the part about ‘conflict of interest’ is rather silly – by that yardstick Parliament should not be able to pass any legislation that affects parliamentarians, directly or indirectly, since given parliament that authority amounts to ‘conflict of interest’. Who else is going to rule on Pakistani constitutional matters? the Supreme Court of India?

  20. banjara286 says:
    February 15th, 2010 3:59 pm

    @zain,
    But the SC can force its own decision if that decision is in accordance with the constitution and strikes down something that is unconstitutional. .

    how can u say with a straight face that the court’s decision would be constitutional when what is currently in the constitution is itself not clear? why can’t u agree that the constitutional provision (in this case article 177) be made explicit, transparent, and binding on all? is it because it will deny politicians like sharifs the opportunity to indulge in their hooliganism whenever they like and then act like champions of free judiciary when it suits them?

    something is constitutional or not is the job of the Supreme Court, and if something is declared unconstitutional, of course the decision of the SC has to be enforced – when a decision is not enforced, deliberately, by the relevant institutions (usually the government) that is when you have a crisis.

    i disagree completely. staying an order is a separate issue from automatically sanctioning its alternative. whatever resolution is found in the end will have to be notified by the govt. it is not the prerogative of the court to directly start running the govt. as well.

    And the part about ‘conflict of interest’ is rather silly – by that yardstick Parliament should not be able to pass any legislation that affects parliamentarians, directly or indirectly, since given parliament that authority amounts to ‘conflict of interest’.

    that is correct. if the parliament is going to legislate to benefit the parliamentarians rather than serving the public interest then, to me, it would be just as much conflict of interest. what make u think otherwise?

    and please! stop pontificating on things being irrelevant or silly; they are neither. if u cannot do any better, then this will be my last post to you.

    Who else is going to rule on Pakistani constitutional matters? the Supreme Court of India?

    what is going to be supreme would be the constitution; this is why it should be amended and made clear. what is the purpose of having a deliberately unclear and ambiguous constitution? just to ensure that the courts have a pretext to stick in their nose whenever they want, for the purpose of interpreting it? do we want to have the tyranny of black coats in place of the tyranny of the khaki wardi?

  21. Zain says:
    February 15th, 2010 6:39 pm

    banjara286 says:

    “how can u say with a straight face that the court’s decision would be constitutional when what is currently in the constitution is itself not clear? why can’t u agree that the constitutional provision (in this case article 177) be made explicit, transparent, and binding on all? is it because it will deny politicians like sharifs the opportunity to indulge in their hooliganism whenever they like and then act like champions of free judiciary when it suits them?”

    I can say the court’s decision will be constitutional because the Supreme Court, in most nations, is the final arbiter on the constitutionality of issues – it is no different in the United States. One can disagree with a decision, as did Democrats with the decision to hand GW Bush the election in Florida and therefore in the country, and as are democrats and many Americans with the recent US SC decision on campaign finance reform. But just because a particular decision does not sit right with you does not mean the court’s decision should not be respected and implemented, nor that the court does not have the power to rule on the constitutionality of laws and policies enacted by parliament.

    In the campaign finance reform case in the US recently, the US Supreme Court in fact largely overturned a Campaign Finance Law that had been passed with bipartisan support by the US legislature, by declaring various provisions of the law unconstitutional.

    In California, the California Supreme Court is hearing arguments against a Constitutional Amendment that banned Gay Marriage – the argument being explored is whether the constitutional amendment to ban gay marriage is itself a violation of the ‘equal rights for all’ clause of the constitution. That case may too eventually end up in front of the US Supreme Court, and the court may in fact (if it rules in favor of gay marriage) end up nullifying other Federal laws enacted with bipartisan support against Gay marriage.

    Go back further in history and it was the US courts that overturned segregationist laws and policies – these are but some examples of the US legislature being put in its place by the US Supreme Court when the court has interpreted US laws and policies to have been unconstitutional.

    The point here is that the Pakistani Supreme Court is doing nothing out of the ordinary – it is in fact doing the right thing by actively pursuing and interpreting constitutional issues. You asked me why ‘I can’t agree that article 177 be made explicit, transparent and binding on all’. My dear sir, that is exactly what I said – if parliament wishes to change/clarify the current process of judicial appointments, after the Supreme Court details its interpretation of that article, then it is free to amend the constitution to do so.

    Where have I suggested otherwise?

    But in the mean time, the GoP and all other Pakistanis are legally obliged to respect and obey the judgments of the Supreme Court, and the GoP should move on the pending judicial appointments based on the judgment of the SC, as well as its other rulings.

    =========

    “i disagree completely. staying an order is a separate issue from automatically sanctioning its alternative. whatever resolution is found in the end will have to be notified by the govt. it is not the prerogative of the court to directly start running the govt. as well.”

    I agree – and note that the SC has not simultaneously issued an order making its own judicial nominations. The only thing that has been done is that the GoP notification has been suspended while the process of nomination gets clarified. Once that is completed, and the court has ruled on whether the CJ’s opinion is binding or not, then the GoP will have to act on the pending nominations in accordance with the ruling. The court is not running government, but if the court interprets the constitution to state that the CJ has the final say in SC appointments, then the GoP must follow that interpretation until it can amend the constitution.

    ================

    “that is correct. if the parliament is going to legislate to benefit the parliamentarians rather than serving the public interest then, to me, it would be just as much conflict of interest. what make u think otherwise?

    and please! stop pontificating on things being irrelevant or silly; they are neither. if u cannot do any better, then this will be my last post to you.”

    And are we going to have a secondary parliament to deal with this particular ‘conflict of interest’? What if certain parliamentarians’ have stakes in various industries – dairy, manufacturing, services etc. – does that now mean that Parliament cannot legislate on any issue related to the economy since any policy they make stands to impact them directly? Sir, this will lead nowhere. You will end up creating a parliament for the parliament for the parliament, and a Court for the Court for the Supreme Court.

    ===========

    “what is going to be supreme would be the constitution; this is why it should be amended and made clear. what is the purpose of having a deliberately unclear and ambiguous constitution? just to ensure that the courts have a pretext to stick in their nose whenever they want, for the purpose of interpreting it? do we want to have the tyranny of black coats in place of the tyranny of the khaki wardi?”

    There is no way on earth you can include every single issue under the sun in any constitution and claim that it is completely ‘clear and unambiguous’. Even the United States cannot claim that. How clear and unambiguous is ‘all men are created equal’? Then why the brouhaha over Gay marriage? Does ‘men’ mean women are not created equal? What about children? Or is the word ‘men’ used colloquially as a more general term applicable to all citizens of the nation?

    The Supreme Court is exercising no tyranny – it is only stepping in where the constitution is ambiguous, and there will always be ambiguities that need to be dealt with. The SC court is the most qualified and the sole institution, under the constitution, to interpret the constitution.

    This is not the ‘tyranny of the black coats’, this is the Supreme Court doing its job, which has our politicians (or some of them for now) in a tizzy because they are seeing constitutional checks against the authority they like to exercise unfettered.

    In any case, the SC court cannot be a tyranny since Parliament always has the option to amend the constitution to change things in its favor – provided they don’t try to amend the constitution to reflect something unconstitutional such as legalizing Slavery and discrimination on the basis of ethnicity, creed, religion (which they in fact have done and I hope the SC someday overturns it) etc.

    Now it is up to the PPP to convince enough of the elected parliamentarians to amend the constitution to its liking, if it so chooses. Till then, as I said, the rulings of the SC must be respected and implemented.

  22. Mike says:
    February 15th, 2010 8:37 pm

    As an American I am at loss about the judicial crisis in Pakistan. Please help me to understand this ‘crisis’

    What I read is the chief justice needed to be “consulted” when appointments are made.

    Are they arguing about method of “consultation” or what constitutes consultation?

    Does Consultation (to CJ) mean consent? (I am familiar with term ‘advise and consent’ in American system)

    To me the CJ appears to have a big chip on his shoulders or he is in cahoots with the Army or NS to bring the President down.

  23. Zain says:
    February 15th, 2010 9:52 pm

    Mike:

    The dispute is over the interpretation of ‘consultation’, and as Justice (R) Fakhruddin commented in the article above:

    “Without consultation, these appointments, in contradiction to the binding recommendations of the Chief Justice of Pakistan remain invalid, being in violation of Article 177 of the Constitution.”

    The standing interpretation of the relevant article is in favor of the CJ’s opinion, and I am not certain that I agree, yet, that the CJ has a ‘chip on his shoulder’.

    The two main issues of tension between the GoP and CJ are the NRO (which was rightly declared unconstitutional, after the Supreme Court gave the legislature the opportunity to turn a Presidential ordinance into law) and now the issue over judicial appointments. These two issues don’t really indicate that the CJ is out to get Zardari.

    Remember that the CJ was just as proactive, if not more, during the last couple of years of Gen. Musharraf’s rule, so the SC’s activism is not Zardari specific.

  24. Mike says:
    February 15th, 2010 10:55 pm

    Thanks Zain:

    It seems to me that the CJ is acting as Judge and Jury.

    Important issue like this was decided by the CJ in 6 or so hours. Why not the full bench?

    I read “Judges reinstatement needs parliament approval: PM” in today’s Dawn. It is an interesting chess move. It will be more bizarre if the CJ does not recuse himself from hearing this future case.

  25. Zain says:
    February 15th, 2010 11:27 pm

    Mike:

    “It seems to me that the CJ is acting as Judge and Jury.”

    Isn’t that how the US Supreme Court works as well? No ‘jury’ there either, and I know first hand how polarizing for the Left/Right decisions of the US SC can be, and the import of judicial nominations.

    “Important issue like this was decided by the CJ in 6 or so hours. Why not the full bench?”

    The two member bench that met late at night did not issue a comprehensive or final ruling on the issue, they merely suspended the GoP notification based on that preliminary hearing if you will. A larger bench is, AFAIK, still hearing the case and will offer a comprehensive ruling on the issue.

    “I read “Judges reinstatement needs parliament approval: PM” in today’s Dawn. It is an interesting chess move. It will be more bizarre if the CJ does not recuse himself from hearing this future case.”

    :D Unfortunately for Zardari, the SC has already ruled that Gen. Musharraf’s actions were unconstitutional starting from the imposition of emergency, dismissal of the judiciary, enactment of the NRO etc. and that all things stand reverted to a ‘pre-Nov 7′ position – which means that legally the Supreme Court has already determined that the judges dismissed by General Musharraf did not need a ‘reinstatement’ through any additional ‘executive order’, they never legally ceased to be judges under the law.

  26. banjara286 says:
    February 16th, 2010 12:56 am

    I can say the court’s decision will be constitutional because the Supreme Court, in most nations, is the final arbiter on the constitutionality of issues – it is no different in the United States.

    I agree with the principle of the sc being the final arbiter, but regret to say that we cannot compare the Pakistan supreme court, where separately cooked benches overturn its own decisions within minutes, to the US supreme court or the sc of any other civilized country.

    And are we going to have a secondary parliament to deal with this particular ‘conflict of interest’?

    we already have a second parliament; it is the electorate of pakistan which has the right to turf out any parliament at proper election time. what we do not have is independent oversight over the supreme court affairs. and what the cjp is trying to do is to establish the right for the sc to be free of any accounting to any institution other than itself. this is why i consider it a tyranny of the balck coats.

    it is quite pathetic really.

  27. banjara286 says:
    February 16th, 2010 1:01 am

    The standing interpretation of the relevant article is in favor of the CJ’s opinion.

    that is rather disingenuous of you, is it not? where, in the constitution, is this standing interpretation described?

  28. Obaid says:
    February 16th, 2010 9:18 am

    Seems to me this cj and others before him just “interpret” constitution in their own favour. Sort of like dictatorship, except even dictatorship when not so casual with constitution and went through hoops of introducing amendments and getting certain parties to approve them and even then they were apologetic about it. The current cj is just behaving like a king and whatever maabdolat feels on the day goes. I don’t’ think we need to respect that. If we won’t allow total arbitrariness to our elected officials how can we allow it to anyone else? I think current judiciary has become a joke. It was a golden opportunity for cj to have upheld the principle of merit and send a positive signal to all about rule of merit in all areas but alas that was not to be. Seems the power the cj got he’s has used not to spread good but to spread the same wrong ideals of arbitration, favouritism and politics that prevailed prior to judges movement. When cj is demanding arbitrary (dictatorial/unchallenged) powers for himself how can we expect different from anyone else; from the top to the ordinary citizen? Very crude of cj and very shameful period for the nation.

  29. Obaid1 says:
    February 16th, 2010 9:22 am

    Seems to me this cj and others before him just “interpret” constitution in their own favour. Sort of like dictatorship, except even dictatorship was not so casual with constitution and went through hoops of introducing amendments and getting certain parties to approve them and even then dictators were apologetic about it. The current cj is just behaving like a king and whatever maabdolat feels like on the day goes. I don’t’ think we need to respect that. If we won’t allow total arbitrariness to our elected officials how can we allow it to anyone else? I think current judiciary has become a joke. It was a golden opportunity for cj to have upheld the principle of merit and send a positive signal to all about rule of merit in all areas but alas that was not to be. Seems the power the cj got he has used not to spread good but to spread the same wrong ideals of arbitration, favouritism and politics that prevailed prior to judges movement. When cj is demanding arbitrary (dictatorial/unchallenged) powers for himself how can we expect different from anyone else; from the top to the ordinary citizen? Very crude of cj and very shameful period for the nation.

  30. Zain says:
    February 16th, 2010 9:39 am

    banjara286:

    “that is rather disingenuous of you, is it not? where, in the constitution, is this standing interpretation described?”

    I am basing it on the comments of Justice Fakhruddin above. Of course, once the current SC rules on the issue, the ‘standing interpretation’ will be that particular ruling of the court.

  31. Zain says:
    February 16th, 2010 10:47 am

    banjara286:

    “I agree with the principle of the sc being the final arbiter, but regret to say that we cannot compare the Pakistan supreme court, where separately cooked benches overturn its own decisions within minutes, to the US supreme court or the sc of any other civilized country.”

    Well, part of problem is that the Supreme Court has not really been allowed to evolve and mature as an independent and autonomous body, with all rulers bullying it, disrespecting it, packing the judicial system with their cronies rather than the best qualified justices (Something Zardari did again under the Dogar SC, by appointing PPP loyalists).

    So unless the court itself is given the space to evolve and mature without political influence and pressure, much like people argue democracy and the media should be allowed to evolve and mature, you cannot expect change.

    But just as people argue for the supremacy of parliament and continuity in democracy, despite the abysmal performance of the democratically elected government so far, so too must there be respect for the supremacy of the Courts to interpret the constitution and continuity in their independence and autonomy, so that all institutions can evolve and mature.

  32. Zain says:
    February 16th, 2010 10:57 am

    banjara286:

    “we already have a second parliament; it is the electorate of pakistan which has the right to turf out any parliament at proper election time. what we do not have is independent oversight over the supreme court affairs. and what the cjp is trying to do is to establish the right for the sc to be free of any accounting to any institution other than itself. this is why i consider it a tyranny of the balck coats.”

    Parliament enjoys far more powers than the SC, and is directly responsible for governing the people. Our parliamentarians have trillions of rupees of our money in their hands, and a vast bureaucracy to manipulate.
    Therefore it is an excellent idea to make them accountable through elections to the people to ensure that they serve those who give them the responsibility to govern.

    The courts are there to, ideally, ensure that the government does not act unconstitutionally, and to interpret and apply the constitution fairly in all manner of legal issues. In order to do so fairly, IMO, the courts need to be independent and autonomous. The courts control no trillions in resources they can embezzle, nor do they have the police and bureaucracy at their finger tips. So it is not really an accurate statement to call the independence and autonomy of our judicial system ‘tyranny of the black coats’. This is how it should be.

    The courts should never shy away from challenging the Government when they view the government’s actions as being unconstitutional – they did so with Musharraf, they have done so with Zardari, and I hope they do so with a PML-N led government as well.

  33. Imran Malik says:
    February 16th, 2010 12:02 pm

    Wrong 100%.

    Justice (Retd) Fakhruddin G. Ebrahim says, “It may be noticed that neither the President nor the Prime Minister has a right to add to, or subtract, from the list of proposed candidates.”

    With due respect to the Justice, his statement is incorrect.

    Article 177 clearly states that the authority to appoint judges to the Supreme Court belongs to the President. The President is required to “consult” with the Chief Justice, but the rest of the honorable Justice Ebrahim’s remarks are not found in the Constitution. Nowhere does the Constitution provide that Justices confer together to present a menu for the President to choose from. This is nonsense.

    Justice (Retd) Fakhruddin G. Ebrahim is certainly entitled to his opinion that “This is obviously correct for two reasons – firstly, the Chief Justices know better the competency of the candidate secondly, this appointment is for an initial period of one year, to enable the Chief Justices to ascertain the ability and integrity of the judge.” But this is his opinion only. It is not in the Constitution and is not binding on anyone.

    If Justice (Retd) Fakhruddin G. Ebrahim truly has the larger public interest in mind, he will refer to the Constitution as it is written, and not how he wishes it were.

  34. Mike says:
    February 16th, 2010 4:42 pm

    Zain:

    Activist CJ? Or just Opportunist?

    Looks like you are betting on a wrong horse.

    http://news.bbc.co.uk/2/hi/6909711.stm

    “He sat on four pivotal Supreme Court benches between 2000 and 2005 that validated the military takeover by Gen Musharraf, his referendum, his legal framework order (LFO) and the 17th constitutional amendment that gave the president additional powers and allowed him to continue as the army chief.”

    http://www.newslinemagazine.com/2009/11/supreme-irony/

    “The Supreme Court took a similarly expansive view of its powers when it not only upheld a decision by the Lahore High Court to fix the price of sugar at Rs 40 per kg but also insisted on applying that to the rest of the country. Before coming to that verdict, the Supreme Court appointed a commission with Competition Commission of Pakistan Chairman Khalid Mirza as its only member to ascertain how much it cost to produce one kilogram of sugar. Mirza returned with the figure of Rs 38.60 per kg and recommended the Supreme Court not fix a price and let the free market decide how much sugar was worth. He predicted that setting the price at a figure as low as Rs 40 would encourage hoarding and smuggling. Mirza, it should be noted, has been fiercely independent as chairman of the Competition Commission, levying a record fine against the politically influential cement industry for forming an illegal cartel. He is also currently investigating a possible cartel in the sugar industry.
    The Supreme Court, however, decided to disregard Mirza’s findings and recommendations, with Justice Jawwad Khawaja telling him, “We had appointed the commission to determine the cost of production and not to lecture us on economics.” The real-world effects of the judgment proved to be as Mirza predicted, as sugar became even harder to find in the market and reports emerged that it was being smuggled to India.
    While both judicial populism and judicial restraint can be defended as legitimate philosophy, it is the Supreme Court’s wanton application of both that has made it so controversial and its decisions so hotly debated. “

  35. banjara286 says:
    February 16th, 2010 5:49 pm

    @Zain
    i agree, unreservedly, on the necessity of the court being independent; the judges in USA, for instance, are nominated by the President and go through the Congressional committee hearings and senate approval. yet, they are no less independent just because they didn’t get to appoint themselves to the bench.

    with reference to your other post, the opinion of justice Ibrahim is just that – an opinion; and it is not even delivered from the bench. i don’t see how one can base the binding nature of the cjp’s recommendation based on it.

    lastly, i am bewildered why, if the cjp’s advice is binding, all this reluctance to amend – and clarify – article 177 to explicitly say so? why can’t article 177 read that the president/pm shall notify the appointment to the sc bench based on the nomination by the cjp?

    makes me think there is something fishy about this whole affair.

  36. Watan Aziz says:
    February 16th, 2010 7:17 pm

    O, the gossip!

    Since the death of Jinnah (and perhaps even before it), the gossip and conspiracy theorists has been busy in Pakistan. (Not that it does not happen in other places.)

    But what they have managed to do it to discuss personalties instead of process. Who is up and who is down instead of how to stand on two feet and make a positive contribution.

    And in the process, managed to deny equity and justice to people.

    Straw man arguments.

    Ignoratio elenchi.

    They peddle fear. Fear of enemies within and without.

    I give them credit for they may be botliwala, aytoonwala or enlightenmentwala, they have all been united for a single purpose: keep the people busy with irrelevant conclusions and keep the process broken.

    I do not care for personalities. I care about the process. If the process is bad, good people will not be able to do good and bad will have a hay day.

    On the other hand, if the process is good, bad people will have to fit in and work within a good process.

    And just you wait till you get some good people in.

  37. Mike says:
    February 16th, 2010 7:19 pm

    I reread the article by the Hon. Justice and here is what I understood:

    How a high court judge is ‘made’ by Justice (retd) Fakhruddin G. Ebrahim.

    Chief Justice of the High Court submits 2-3 names for every vacancy to the provincial government.

    Provincial government adds comments and the provincial government forwards to list to the Ministry of Law.

    Neither the President nor the Prime Minister has a right to add to, or subtract, from the list of proposed candidates.

    Appointment is confirmed by both the chief justices is binding on the government.

    Is this consultation? Smells like a dictat.

    In short, justices choose their own; elected officials and executive branch have no say and the executive branch is a postal delivery service for chief justices.

    Not unlike Mafia Commission process of anointing a ‘made man’

  38. Watan Aziz says:
    February 16th, 2010 7:36 pm

    Follows the most detailed discussion I have come across on the matter of appointment of judges of High Court. This was prepared by Services and General Administration Department of Punjab.

    However, this still does not address the issue of appointment (elevation) of judges to SC.

    Nor does it address the issue of Adhoc judges.

    Nor the core issue: independence of judiciary.

    The source of the discussion is below:

    1. On receipt of intimation from the Honourable Chief Justice, Lahore High Court, Lahore about his recommendations Re: filling 35 vacant posts of High Court Judges under Article 197 read with Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. The Chief Minister was pleased to desire, in terms of Article 105 ibid, that the case be processed by the S&GAD to enable him to advise the Honourable Governor in the discharge of his function as consultee under Article 193 ibid.

    2. The appointment of the Judges to the Lahore High Court is guided by the provisions of Article 193 of the Constitution of the Islamic Republic of Pakistan, as interpreted by the Honourable Supreme Court of Pakistan in the Al-Jehad Trust Cases [PLD 1996 Supreme Court 324 and PLD 1997 SC 84].

    3. In this respect, it is to be noted that the Honourable Chief Justice of the Lahore High Court, Lahore, prepares a list of candidates who in his estimation, are suitable for being appointed as Judges of the High Court.

    4. As per the Constitution (Re: Article 193 ibid), a Judge of the High Court is to be appointed by the President of Pakistan with prior consultation, inter alia, of the Governor of the Province.

    5. As per Article 105, in the performance of his functions, the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister.

    6. As per the Punjab Rules of Business, 1974 which have been framed by the Governor under Article 139(3) of the Constitution of the Islamic Republic of Pakistan, 1973, the recommendation for appointment of Judges of the High Court is one of the functions which have to be performed by the Governor on the advice of the Chief Minister.

    7. This means that as a consultee in terms of or under Article 193 of the Constitution, the Governor has to seek and act in accordance with the advice of the Chief Minister.

    8. It needs to be recorded here that the provision analogous to Article 193 of the Pakistan’s Constitution is Article 217 of the Indian Constitution. And in the Indian Supreme Court’s judgment relating to Advocates on Records Association’s case (AIR 1994 SC 268), it has been specifically held that “the constitutional functionary meant by the expression ‘Governor’ in Article 217 (1) is the Governor acting in the ‘aid and advice’ of the State Ministers in accordance with Article 163(1) read with Article 166(3) and 167 ibid.

    9. It also needs to be recorded here that in the case titled as Al-Jehad Trust v Federation of Pakistan [PLD 1997 SC 84], Mr Justice Ajmal Mian, J (as his Lordship then was) has specifically held that “in practice the process for an appointment of a judge in a superior court is initiated in a high court by its Chief Justice and in case of the Supreme Court by its Chief Justice. After that it is processed in case of a High Court by the Governor and the Chief Minister concerned. Then it is sent to the Ministry of Law and Justice, which seeks opinion of the Hon’ble Chief Justice of Pakistan. After that a summary is forwarded to the Prime Minister, who records his/her advice. Finally, the matter is placed before the President for order. In case of the Supreme Court the above procedure is followed with the modification that the provincial functionaries are not involved and that Ministry of Law and Justice does not forward the matter to Hon’ble Chief Justice of Pakistan as the latter sends the recommendation to the above Ministry…”

    10. It is noteworthy that Part-A of Schedule-III of the Punjab Government Rules of Business, 1974 framed under Article 139(3) of the Constitution of the Islamic Republic of Pakistan, 1973, enumerates those lists of cases which require the orders of Governor on the advice of the Chief Minister, and this list includes, at Sr No 7 ibid, the case of recommendations for the appointment of the Judges for the High Court. In other words, these Rules of Business framed under Article 139(3) of the Constitution unequivocally require the Governor to make recommendations for the appointment of Judges on the advice of the Chief Minister.

    11. From the afore-noted provision of the Constitution and the Rules of Business, it appears that the correct procedure for appointment of Judges of the High Court is that once the Chief Justice of the High Court has prepared a list of candidates to be considered for appointment as Judges of the High Court, the same may be forwarded to the Governor of the Province, but, keeping in view the provision of Article 105 of the Constitution read with Rule 12 of the Rules of Business, 1974, the Governor of the Province should then refer the same to the Chief Minister, and thereafter perform his consultative function as envisaged by Article 193 of the Constitution, read with Article 105 ibid, as per the advice received from the Chief Minister.

    12. However, in the case titled Al-Jehad Trust vs. Federation of Pakistan (PLD 1997 SC 84) Mr Justice Ajmal Mian J, while considering modalities to be adopted, where it was imperative to avoid delay in the matter of appointment of Judges of the Supreme Court, observed that, in such a contingency, ‘copies of the summary can be submitted to President’s Secretariat simultaneously with the Prime Minister’s Secretariat so that the President’s Secretariat may follow up the above matter and may carry out the initial processing.’ Relationship between the Governor and the Chief Minister is similar.

    13. Following the 31st July, 2009 verdict of the Honourable Supreme Court of Pakistan in Sindh High Court Bar Association’s case, a large number of Judges have been relieved, and the resultant vacancies need to be filled up on priority basis and with the utmost expedition, preferably before the expiry of annual summer vacation in the High Court so as to obviate the obvious difficulties which the citizens are likely to face in case the requisite appointments are delayed.

    14. By virtue of entry No 26 of Schedule I of RoB, under the sub-heading ‘Special Institutions’ read with serial number 14 in Schedule II of the head ‘Services and General Administration Department’, matters relating to High Court are assigned to this department. The exercise undertaken, in pursuance of the obligatory RoB, has brought on record, the reports from Special Branch, Punjab and CID Punjab Police. These pertain to the antecedents, character and conduct of the proposed candidates (as opposed to their knowledge and suitability for judgeship in the superior courts, assessment thereof falls exclusively within the domain/jurisdiction of the Hon’ble Chief Justice of the High Court and the Hon’ble Chief Justice of Pakistan, as held by the Hon’ble Supreme Court of Pakistan in the Al-Jehad Trust cases cited above).

    15. The case is submitted for consideration of the Honourable Chief Minister for advising the Honourable Governor to act in the light of the data placed while performing his consultative function under Article 193 read with Article 105 of the Constitution of the Islamic Republic of Pakistan 1973 in respect of the candidates recommended for elevation as Judges of Lahore High Court by the Honourable Chief Justice of Lahore High Court, Lahore.”

    http://www.thenews.com.pk/print3.asp?id=24040

  39. Watan Aziz says:
    February 16th, 2010 11:11 pm

    In the “judges’ case,” the Supreme Court elaborated key principles for judicial appointment. The court ruled that the words “after consultation” meant that “the consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness” and that the “opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President.”

    I do not have full text of the Trust case decision, but the above is a quote, apparently, from the same.

  40. readinglord says:
    October 29th, 2010 9:46 pm

    I wonder why people have forgotten the case of Mukhtaran Mai which was taken up by CJ suo motu when it was already being bungled up by high judiciary and let it remain in limbo for about six years causing prolongation of incarceration of the accused Mastoies despite the fact they had been acquitted by the LHC.

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