Comment on the current judicial crisis

by Justice (retd) Fakhruddin G. Ebrahim

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.

16 Comments

Filed under Justice, Law, lawyers movement, Pakistan, Politics

16 responses to “Comment on the current judicial crisis

  1. mazhur

    If the CJP was ‘consulted’ by the government then there was no need for the CJP to invalidate President’s notification. This clearly shows that the government is ‘playing games’.

    Like others, Judges are no exception to human lackings such as corruption, nepotism and servility.

    I had lodged a Review Petition in the SC submitting how an acting Justice who was my opponent counsel and personally knew me by name and face for more than a decade had indulged in alleged corruption (on record)and when a new case appeared before him as a Judge how brutally he ‘killed it”…..the Lords of the Superior court least bothered to adjudicate the case or to entertain the Review.
    Till this day I have not heard from them about the fate of my Review but I conceive the same has been dumped in the gutter!

    Lawyers and Judges both need reforms….and should be subjected to a full-fledged course on ”professional ethics’. It’s only then I would be able to trust that by the tussle between the judiciary and the government clients suffer the brunt!! Mind it almost all big guns of law receive their enormous fees in advance….and if anything goes wrong with the case due to the stated ‘turmoil ‘ why they should be the sufferers??

    This note should not be taken as prejudice against the lawyers or the judiciary for 2 of my kids are also lawyers…. and I don’t want to see them follow the existing ‘system’ in courts of law and counsels general ignoble dealing with clients!

  2. hoss

    “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.”

    Yes sir, The only issue is that the PPP wants to appoint its own judges to the LHC. The whole drama is all about removing Justcie Sharif and have someone who would change the list to add the PPP’s candidates.
    Nawaz and the CJ don’t agree with this and they feel that the PPP has no right to appoint judges in the LHC.
    There is no problem in Sindh and other provinces where the PPP is in coalition but in Punjab PPP appointed some judges when Dogar was CJ.
    PPP’s pov is that the judges it appointed in the SC in Islamabad have been dismissed so it must be given some share in Punjab.
    Well, both CJ and Nawaz will not let this happen so the PPP decided to plunge Pakistan in to a crisis to gain some leverage.

  3. banjara286

    with due respect, justice ibrahim, if the recommendation of the chief justice is indeed binding on the govt – as you state in your note – then let the constitution of pakistan be formally be amended to state that the appointments/promotions to the supreme court will be made by the cjp.

    i did not expect, indeed ia am extremely disappointed, that a person of your stature has decided to play cheap politics with this issue. please let us know in which other country in the world, the judicial appointments are made by the judiciary itself. thanks.

  4. K -

    I completely agree with Justice sb.

  5. Ammar

    My knowledge pertaining to legal matters is quite limited, the assertion that the government wants to appoint judges of their own liking cannot be disregarded but that is the case for every other country. Take the case of United States as the democrats and republicans strive to appoint a liberal or a conservative which brings a diverging opinion to the bench.

    Take the case of NRO the Supreme Court had a unanimous decision which is quite rare for a full court! Do all the judges concur to same principles or were they identical twins?

    Perhaps a sou-moutu action on the Mumbai blast case of Lasker-e-tiaba activists would put the India and Pakistan on the right track of diplomacy? Numerous cases of terrorism need to be fast-tracked as we need to see justice being delivered!

  6. Tilsim

    Hon. Justice Ebrahim, I would like to understand the constitutional basis of your clear statement that the President is bound by the CJP’s recommendation. My impression is that the language is quite vague and untested. Could you kindly clarify your view beyond the reasons that you have given. Similar statements can be made that there needs to be a system of checks and balances in the appointment of Judges from outside the Judiciary. What is the Westminster model or of other countries with long democratic traditions? I wish to have an informed debate as possible without regard to some of the political nuances of the current crisis.

  7. YLH

    Article 260 makes consultation binding in so far as supreme court and high court appointments are concerned…

    Here is the fun part though… this particular definition of consultation was added by presidential order in 2002…. and is ratified by the 17th Amendment.

    So … there is no consistency in the argument that 17th amendment is wrong and the consultation is binding…. because both are contradictory to each other.

    Just my two cents.

  8. YLH

    Banjara,

    That is a very apt comment… the appointment by chief justice would mean that a person of same ideological leanings will forever control the Supreme Court… something that the right wing wants…

    Democracy has its own checks. Today the PPP will appoint its people… tomorrow PML would appoint its people on the vacancies created… and over all and over time …. there would be balance of ideologies and ideas.

    CJP should NEVER be allowed to choose his judges…and the ridiculous addition to the constitution by General Musharraf the usurper making consultation binding advice in this particular matter should be UNDONE.

  9. Hayyer

    Consultation does not mean consent. If the SC rejects the President’s order he can reappoint them after due consultation. Unless that is, in Pakistani law, consultation is interpreted as consent.

  10. Rabia

    fully agree with banjara and YLH on this. It’s interesting actually – there is also, I believe, an Indian Supreme Court decision in 1993 that makes consultation with the CJ (in their article 124 which is the equivalent of our articel 177) binding as well. Both article 260 and this decision seem to violate the spirit of the original articles describing judicial appointments and make the executive’s role in judicial appointments redudant.

    It’s a bit disappointing that Justice Ebrahim hasn’t discussed the consequences of the CJ having this much control over judicial appointments.

  11. yasserlatifhamdani

    Hayyer

    General Musharraf’s addition to Article 260 seems to make it binding….

  12. krash

    Well, if Article 260 makes the consultation binding then Zardari doesn’t really have a case. He had no business over-riding the CJ.
    It’s fine to argue that the CJ shouldn’t be picking justices. But that doesn’t justify bypassing the constitution. Change the constitution first, in the parliament, then the President can pick his judges.

  13. krash

    Isn’t it ironic that the 17th amendment, which Zardari has been holding on to with his dear life, pulls the rug from under him in this case.

  14. Tilsim

    @YLH

    Thanks for clarifying the history and context of the constitutional situation.

  15. yasserlatifhamdani

    Krash,

    In my view … everyone arguing against 17th amendment cannot use it … it is subject to estoppel.

    tilsim,

    Most welcome.

  16. msmemon

    To my mind the comments of Mr Justice Ibrahim is clear judgment. The consultation is and should be binding since this is a matter of professionalism. I am a doctor and I can judge professional competence of a doctor better than a politician or CSP officer.