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.
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.
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!
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.
“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
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.