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Justice Fakhruddin G. Ebrahim on the Judicial Crisis : ALL THINGS PAKISTAN
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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 posted

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  1. 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.

  2. 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.

  3. 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

  4. 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’

  5. 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.

  6. 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.

  7. 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. “

  8. 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.

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