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.
@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?
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?
@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?
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.
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.