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
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.
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-ir ony/
“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. “
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.
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.
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.