Posted on February 14, 2010
Filed Under >Fakhruddin G. Ebrahim, Law & Justice
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40 responses to “Justice Fakhruddin G. Ebrahim on the Judicial Crisis”

  1. readinglord says:

    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:

    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:

    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:

    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:

    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.