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.
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.
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.
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.
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.
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.
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“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.
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“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.
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“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.