Appointment Of Judges – India And Pakistan

 By Yasser Latif Hamdani

In all likelihood, the judicial crisis will be over in the late afternoon today when the Federal Government will withdraw its notification thus burying the basic issue in the crisis.   The heroes to save the day are once again none other than Barrister Aitzaz Ahsan – the great bridge builder- and Prime Minister Gillani who has proved himself to be a statesman.

When divorced from the drama of high politics, there are some legal issues  that need some urgent attention.  First and foremost is the issue of the consultation of Chief Justice being a mandatory provision for the appointment and elevation of the said judges under 177.  The meaning of  consultation is provided under Article 260 where such deliberation is not binding on the president save in matters pertaining to appointment of judiciary.   It may be noted here that this was inserted in the constitution through LFO 2002 by General Pervez Musharraf and therefore ratified under the 17th amendment.

Under the present law, which itself should be a subject of some controversy, the executive has to consult the Chief Justice and if the Executive disagrees then he states his reasons which are then taken up by the Chief Justice after which the Chief Justice may accept or reject it- the latter course referring the matter to It is also quite clear that seniority is not necessarily a mandatory convention.   Reliance for is placed on the “Judges Case”  2002.  Interestingly one of the signatories  of this judgment was Justice Hameed Dogar.   This poses new problems.   Shouldn’t those arguing against the 17th amendment and against PCO-ed judges like Hameed Dogar be blocked by the principle of estoppel?   At the very least those arguing against the presidential notification right now ought to reconsider their position in this light.

However more importantly the question must be raised as to whether this involvement of the Chief Justice in the process of selection of judges desirable?  Pakistan seems to have borrowed heavily from the Indian method- see page 31 of the 2002 Judges Case-  which is given under Articles 124 and 217 of the Constitution of India. Was it really the intention of the founding fathers of the Indian constitution and did the founding fathers of Pakistani constitution following that tradition intend for consultation to adopt the meaning it has under General Musharraf’s addition to article 260 of Constitution of 1973?  The proposal to provide for the concurrence was shot down very early on.  Dr. Ambedkar when speaking on the issue of the judges’ appointments during debate on the formulation of the Indian constitution said that the consultation with the president and the chief justice for the moment sufficient.  This is enough as to ascertain the true intention behind the formulation of this method in the subcontinent.    A clear distinction was drawn between concurrence and consultation and the same has been the subject of many a committee and commission in India.  Furthermore interpreting article 217 which speaks of consultation by executive of the Chief Justice, in AIR 1982 SC 149, (landmark 1st Judges Case of India) Justice Bhagwati opines that it is open to the Central Government to override the deliberations and the view of the Chief Justice of India. 

What this boils down to is that consultation with the Chief Justice of Pakistan and his/her assent was not quite intended by the makers of this constitution to be binding on the president or sine qua non for appointment.  In any event, the Chief Justice of Pakistan should not be the final arbiter and determinant of such judicial appointment and if we are so enamored by the Indian example, we should introduce a collegium of judges which should advise the Chief Justice as well, which still should be subject to an overriding authority of the executive.    The objective should be to establish the dominance of the executive in matters of ideology and background and the Chief Justice should play a role in making a call on the legal acumen of the proposed judge.  This way democracy will ensure balance in judiciary and its over all independence.   It goes without saying that the appointment of likeminded judges to higher judiciary is an important exercise of democracy and party politics.   Today PPP may appoint its candidates and tomorrow it would be PML’s turn.

41 Comments

Filed under executive, Judiciary, Justice, Pakistan

41 responses to “Appointment Of Judges – India And Pakistan

  1. mazhur

    <<<<<<<<<<we should introduce a collegium of judges which should advise the Chief Justice as well, which still should be subject to an overriding authority of the executive.<<<<<<<<<<

    Interesting! If the executive is to be allowed to exercise 'an overriding authority'' then rest assure that the citizens would be denied the least bit of justice that they are already getting.

    Judiciary is meant to keep a watch over the executive (the Parliament) so that it doesn't go beyond the Constitution. What if the Parliament in its whims goes 'Nazi' or 'Fascist' and still allowed to exercise ''authority over the Judiciary''????

  2. ylh

    Your comment is so utterly devoid of the main point that it is not worth commenting. I suggest your read my reference to Indian judgement AIR 1982 SC 149 in light of page 31 of our own judges case of 2002.

  3. mazhur:

    “What if the Parliament in its whims goes ‘Nazi’ or ‘Fascist’ and still allowed to exercise ”authority over the Judiciary”????”

    I am a layman in constitutional matters and may be wrong but believe what YLH is arguing is not that the legislature or the executive has an ‘authority over the judiciary’ but a control over the appointments only.

    Such a control is an important part of checks and balances in other democracies as well. For example in the US, the president appoints the judges with the oversight of the congress, but once appointed, the judges are free to act completely independence of the political beliefs of the president or the congress.
    A case in point was Justice Souter in the US supreme court who was appointed by G. Bush and was expected to be a conservative but once on the bench he held the conservative wing in check and there was little that Bush could do about it.

    Regards.

  4. Rabia

    It’s a shame that both the Pakistani and Indian constitutions completely shut out the role of the legislative branch in confirming judicial appointments.

    imo, since the issue of judicial appointments is such a combustible one, it is better to openly ‘politicize’ it in the sense that a nomination should have to pass a vote in the Senate or NA. Otherwise there will always be opaque backroom deals and power struggles with everyone pretending that the issue should be ‘above politics’ – it’s better to bring them out in the open as the US process does.

  5. hoss

    “It’s a shame that both the Pakistani and Indian constitutions completely shut out the role of the legislative branch in confirming judicial appointments.”

    What is shameful about it? You are just making a stupid comment. Every country has its own traditions. The US system belongs to the US and not to India and Pakistan.

    This is a political matter and will be handled politically. People can go thru the constitution as many times as they want. The reality is that the PPP wants some seats in LHC because it will not get any at the SC. I think settlement would be some give and take between the parties and the issue would be settled.

    In Pakistan everything is political.
    CJ to President to COAS will do their politics.

    We need to look at the things objectively.
    Here is the reality:
    President as per constitution cannot be involved in partisan politics. But Zadari is a head of a political party as well as the President.
    COAS is not supposed to take part in politics but there has never been a COAS in Pakistan who was not involved in politics.
    So I am not concerned that the CJ does some politics too. That is Pakistan’s culture and that is the reality.

    I actually think issues like this help people understand the nature of Pak’s establishment and that knowledge will come in handy when people are ready to take care of the whole drama.

  6. hoss

    I was following a discussion on facebook where tons of sindhi commented on Taliban, Pathans, Army and Provincial rights. Not one of them discussed the Judges appointments. No one mentioned it even in passing. Check out Baloch or Pathan blogs and no one paid attention to stupid manufactured issue like Judges appointment.

    The media which basically caters to people in Punjab had nothing else to talk about.
    So what if CJ gets to appoint his own judges, it is not that those Judge will drive tanks towards the Prez House. Those fkers will do what other judges are doing, basically nothing.

  7. hoss

    Gorki
    February 17, 2010 at 2:48 am
    “A case in point was Justice Souter in the US supreme court ”

    Do you remember the Dec 12, 2000 judgment by the USSC? It too was a great example of impartiality of the judges.

    Judge Scalia was a personal friend of Cheney. His son was a partner in a law firm that was helping the Bush campaign in Florida recount battle.

    Judge Thomas’s wife headed a republican committee to search and vet the perspective cabinet appointments. She claimed that since they never discuss each others work related issues, there is no need for Judge Thomas to recuse himself. Judge Scalia said exactly the same thing about his personal relationship and his son’s connection with the Bush campaign.

    In the last 10 years majority of decisions on constitutional issues have been by a divided court with mostly a 5-4 split in favor of conservative judges appointed by conservative republican party…And yet they are impartial!
    —-
    I just can’t believe that Zardari is confronting the judges regularly. He should be building a trust relationship with the court because in the end, he will need judges to save his government from the army tentacles.

    Instead of working with a civilian institution Zardari is trying to weaken that institution so that no action is taken against him for his alleged corruption.

  8. Gorki

    hoss:

    I think you missed my point.
    I mentioned Justice Souter not as an example independence of the SC, not its impartiality.
    There is a difference.

    Of course nobody is contesting th fact that judges are humans after all, and like all other humans, are prone to be swayed by their own biases. However, once appointed, the SC justices serve for life and even if they refuse to tow the line, there is nothing anyne can do about it.

    My post was in response to mazhur who by stating:
    “….and still allowed to exercise ”authority over the Judiciary…” seemed to imply that somehow by having the power to appoin a SC judge an executive retains the right to control him for life, which is clearly not true; atleast in the US system.

    Regards.

  9. Nebu

    Yasser Latif Hamdani,

    “Judges Case” 2002? I thought Judges case is the Al-Jihad Trust case of 1996 long before Musharraf.

    The definition of consultation in article 260 was drafted to accomodate the rulings in the above 1996 case, and not of any case of 2002. Pls clarify.

  10. ylh

    I can’t go around educating people with no knowledge and understanding of law.

    Read a bit more and you’ll realize that Judges case 2002 is what CJP is depending on …and the 260 definition was incorporated in August 2002 subsequently.

  11. Nebu

    ylh,

    Why don’t you just admit you were mistaken instead of retaliating like a schoolboy.

  12. Nebu

    … and digging yourself deeper in the hole as consequence.

  13. yasserlatifhamdani

    Yaar Nebu,

    The problem with you is that you read a bit here and there from some rag and assume you know everything…. whereas you are really quite ignorant my friend.

    There are 4 cases that are designated as the “Judges Case” in Pakistan… Al Jehad, Asad Ali Case …. Judges Case 2002 – Judges Case 2002 is the one that the Supreme Court is using to defy the seniority principle. All four deal with the appointment of judges and are known as judges case. The tradition is from India which has three of its own… one of which I have quoted above.

    If you can’t tell the difference between Judges Case 2002 – April 30th judgment and the Al Jehad Trust Case 1996 also referred to as Judges case then how am I mistaken? Perhaps you should consider the fact that your knowledge of the issue is … shall we say .. quite basic?

    Here is the Supreme Court detailed Judgment in Judges Case 2002.

    http://www.supremecourt.gov.pk/web/page.asp?id=255

    So like I said… next time before making a fool of yourself use the simple search engine called Google.

  14. yasserlatifhamdani

    Interestingly …. it is the government that relies on Al Jehad Trust Case i.e. Judges Case 1996 i.e. seniority principle… and it is the Chief Justice’s position that seniority principle may be circumvented via Judges Case 2002….

    But then one would have to have some basic intelligence and common sense to discern such simple points.

  15. Rabia

    hossp,
    the US method of judicial appointment is worth considering because both India and Pakistan emulate the US in giving a great deal of power to the supreme court e.g. judicial review but have not spelled out a proper method for judicial appointments which has been a large source of the tension between the judiciary and the other branches of the government.

    If the Supreme court has extensive powers of judicial review then the Chief Justice should not be given primacy in judicial appointments and the legislative branch should have a role when presently it has none.

  16. yasserlatifhamdani

    An apology by Nebu would have been nice before he fled the board shamelessly.

    But … perhaps it is too much to ask of people like him.

  17. Nebu

    yasserlatifhamdani,

    Now you’re again resorting to clutching straws, trying to confuse the issue. That case was dismissed according to your link. Who would amend the constitution based on arguments presented in a case which was dismissed? I.e., except someone of your legal calibre.

    The Al-Jihad Trust case of 1996 established the primacy principle of SC and not any 2002 case, and that is why the definition in article 260 was amended to incoroporate that supremacy. The seniority issue has nothing to do with it. All that had already been decided back in 1996.

    Even your page 31 of the 2002 judgment cites the ‘Judges Case’ obviously referring to the 1996. Please read your .pdf again.

  18. Nebu

    Your Indian examples too are merely the submissions of the petetioners’ counsel in that case, which was dismissed.

    Now you can flee. No apology needed.

  19. yasserlatifhamdani

    Dear Nebu,

    Now this is fun.

    “That case was dismissed according to your link.”

    “Your link” as in the Supreme Court’s link. Can you tell me how the dismissal of the case affects the content and precedent and the ruling of it? I don’t think you understand the issue or how this precedent thing works. Precedents are those parts of the judgments that define the statutory law… not the decision (dismissal or leave to appeal or acceptance) for your information.

    “The Al-Jihad Trust case of 1996 established the primacy principle of SC and not any 2002 case, and that is why the definition in article 260 was amended to incoroporate that supremacy. ”

    Not true. Al Jihad Trust Case established the principle of seniority. 2002 Judges Case circumvented it.

    Here is an advocate of the Supreme Court writing in the Dawn today:

    “In the light of the SC judgments in the Al Jihad Trust PLD 1996 SC 324, the Supreme Court Bar Association PLD 2002 SC 939 and the Sindh High Court Bar Association PLD 2009 SC 879 cases, read together with Article 260 of the constitution, the legal position that emerges is that the consultative process envisaged for the appointment of judges between the government and the chief justice should be effective, meaningful, purposive and consensus-oriented, leaving no room for complaint of arbitrariness.

    On the issue of appointment of the judges to the superior courts the Pakistani chief justice’s recommendation is entitled to be accepted in the absence of very sound reasons forwarded by the executive. The reasons recorded by the executive are justiciable while the opinion of the chief justice of Pakistan is not justiciable. These principles were reaffirmed by a 17-member bench of the Supreme Court in its recent pronouncement on July 31, 2009 reported in PLD 2009 SC 879.

    The government’s contention appears to be that it was following the neutral and universally acclaimed principle of seniority and this being a sound and legitimate reason, it was entitled to deviate from the recommendation of the chief justice. Even in the Al Jihad Trust case the SC had observed that the senior-most judge of the high court had a legitimate expectancy to be considered for appointment as the chief justice of the high court.

    The principle of seniority was also reaffirmed in the case of Malik Asad Ali PLD 1998 SC 161 where the SC held that in the absence of concrete and valid reasons, the senior-most judge has to be appointed chief justice. Following this principle former Chief Justice Sajjad Ali Shah was even removed from office.

    While the SC’s observations in the Al Jihad Trust and Malik Asad cases and the principle of seniority do lend some weight to the government’s views, convention and the subsequent SC judgment in the Supreme Court Bar Association PLD 2002 SC 939 case negate the government’s views. In the Supreme Court Bar Association case, the SC had held that the principle of seniority and legitimate expectancy could not be extended to the appointment of judges of the Supreme Court.

    Then you write: “Your Indian examples are too are merely the submissions of the petitioners counsel in that case which was dismissed”

    Ha ha ok… You mean Justice Bhagwati’s majority view is merely a petitioner’s counsel’s submission which was dismissed. Someone please inform Indian judiciary of this “Earth Shattering” discovery.

    May I recommend that you first orient yourself with how this “precedent” thing works instead of wasting my time and others’ on here?

    And if my simple English is too much for you to understand…. perhaps someone more eloquent and articulate will jump in and explain to you what is being said here in a language of your choice.

  20. gracchust

    nebz, how is the Indian verdict counsel’s submission?
    I’ve got to hear this one.

  21. Nebu

    Yaar I don’t have time for your desperate tantrums or some advocate’s views from Dawn. Just inform me which Judges Case is cited on that page 31 of 2002 which you are bandying about.

    Okay?

  22. Nebu

    gracchust,

    The Indian precedent was cited by the petetioner’s counsel in argument, but the court did not accept it and threw out the case.

  23. yasserlatifhamdani

    Yaar nebu,

    Please refer to my earlier post.

    There are 4 cases that are designated as the “Judges Case” in Pakistan… Al Jehad, Asad Ali Case …. Judges Case 2002 – Judges Case 2002 is the one that the Supreme Court is using to defy the seniority principle. All four deal with the appointment of judges and are known as judges case. The tradition is from India which has three of its own… one of which I have quoted above.

    So what exactly is your point?

    Also… your response is basically wrong … read page 31 of the Judges Case 2002 again …. you’ll understand that the distinction is drawn vis a vis a “collegium” not the principle.

  24. gracchust

    Ylh you are wasting your time with someone who doesn’t understand how judge made law works.

    Don’t you have something better to do than argue with someone like that?

  25. yasserlatifhamdani

    Yaar kiya karoon… ignorance aur us pur arrogance bardasht say bahir hai..

    Pur theek keh rahain aap.

  26. Nebu

    Okay I read it again. This is the only part where “collegium” is mentioned on page 31.

    “(3) He further submitted that a wrong precedent was set by this Court in the Judges case and Asad Ali’s case by making them applicable ex post facto and the result is that petitions are being filed to challenge the appointment of the Judges of the Superior Courts.The closest constitutional arrangement to that of Pakistan in respect of the appointment of Judges is that of India. They virtually follow the same practice, although there are certain different provisions regarding collegium of Judges.”

    The counsel cites the Indian example here. So how is this “collegium” relevant to the change of definition in article 260, and not the 1996 Judges case? That is my point.

    Anyway this is getting too technical for others’ amusement, and I need to go. So please don’t accuse me of fleeing, and refrain from committing fraud on unsuspecting readers.

  27. ylh

    Dear Nebu,

    Frankly you are not making any sense.

    Maybe some one else can explain.

    The definition of consultation was added to the constitution by 273 A ie in Aug 2002. I am not sure what connection you are drawing to Judges Case 1996 ie Al Jehad. All I am saying is that 2002 Judges Case and the consultation definition are both per incuriam for many reasons.

    My worst fear is that you are one of those lawyers who are running about in the streets. Your utter ignorance of law seems to suggest it so.

  28. mazhur

    Hoss’s views overall carry some weight.

    YLH just brags about his ”knowledge” and tries to base his arguments on technicalities without comparing the facts and circumstances of the matter.This is why he usually ends up disappointed and yelling at others…..that’s not good, he better shout in some lower court first to test his grit!

    and Gorki…..

    ‘Control’ and ‘authority’ have a subtle line of difference between them! If the executive ‘controlled’ the ‘judiciary’ the world of law and justice would go haywire! As an example the appointment of Judicial Magistrate in lieu of bureaucratic officials (magistrates, SDM’s) etc was one of the reasons to reform courts and allow people access to justice. Needless to say all bureaucratic appointments in the judiciary were either political or under political ”control” and servile to executive’s ”authority”.

    Moreover, for obvious reasons which I’m not going to regurgitate, you certainly cannot compare ‘your President’ to that of the United States. You shouldn’t as well expect to compare the people here with people living in any civilized country. First ‘deserve’ than ‘desire’ should be the motto.
    Let’s stop comparing two opposite sides of a picture to try make two wrongs one right!!

  29. ylh

    Yaar mazoor, I don’t know what you are on about. What facts? The issue is about the definition of consultation and the legal theory of appointment of judges.

    Your first comment showed us that you don’t have a clue. Gorki tried to explain it to you…but you didn’t get it. I like to call a spade a spade …

  30. Nebu

    ylh,

    Your tactics are the age old ones trying to obfuscate and lead the argument into circles when pushed in a corner. I.e. ignoring the original question and coming up with new ones so that the original one is obscured. Tell me about it. I know.

    The original question was my challenging your statement ” It is also quite clear that seniority is not necessarily a mandatory convention. Reliance for is placed on the “Judges Case” 2002.” This is completely wrong and I proved it. But you kept trying to run off in different and irrelevant directions.

    Firstly, the ‘Judges Case’ cited commonly is the 1996 Al-Jihad case. Your 2002 case merely upheld the same.

    Secondly, the seniority issue is nowhere mentioned on page 31 of the 2002 case.

    Thirdly, the definition of ‘consultation’ was amended to make SC judgments binding upon the President in light of the Al-Jihad case, and not some 2002 case, due to reasons outlined above.

    Now you come up with this per incuriam thing. This is not what you said in your article. In fact you said quite the opposite that ‘reliance’ had been placed on the 2002 case to change the definition.

    Are you trying now to back off like your “Prime Minister Gillani who has proved himself to be a statesman” just did?

  31. Nebu

    mazhur,

    Yes, and I noticed he has some ‘taali-mar’ sidekicks in the backrows keeping time with his qawwalis. One of them just tried to teach me how to read.

  32. ylh

    Nai bhai, you didn’t even understand half the things. Other than proving yourself to be a complete dunce you didn’t prove anything.

    Your original objection was to the use of the term “judges case”. I pointed out that judges case is a term used for four cases.
    The government’s contention was that Khawaja Sharif was senior and as per Al Jihad case seniority is a mandatory principle. The CJP’s contention was that the seniority principle has been overturned by 2002 judges case …

    If you read closely the 2002 judgment has overturned the seniority principle of Al Jihad case ie 1996 Al Jihad case.

    My contention was that 2002 judgment is not very sound and is by a controversial judiciary including Abdul Hameed Dogar.

    Furthermore the issue of consultation under 260 has been introduced by 17th amendment.

    I have been quite clear about this and perhap you don’t understand per incuriam very well.

    Your questions and objections show how ignorant you are especially your funny comment that 2002 judgment was dismissed and then you linked it to 260 which btw has nothing to do with either 1996 or 2002.

    why must people like you always act so disgracefuly …I mean you know you are clearly wrong. You haven’t even bothered to read the Judges Case 2002 to comment. So stop wasting your time and mine.

  33. ylh

    PS The reference to page 31 is with reference to Pakistan’s adoption of the Indian principle. I am not sure why seniority principle has to mentioned on page 31 when the crux of the judgment overturns the superiority principle.

    Mind you if 2002 doesn’t overturn the seniority principle, then CJP has acted completely unconstitutionally since Al Jihad is quite clear that seniority must be followed.

  34. Nebu

    Yeah Bhai, you understand everything, and everyone else understands nothing. I know, I know!

    If 2002 overturns the seniority principle of Al-Jihad, then you would still be only partly right because the amendment of consultation definition has nothing to do with the seniority issue, but the overall primacy issue established in Al-Jihad.

    I guess I will stop wasting my time with stubborn riffraff, but only till next time when you again say something stupid.

  35. ylh

    Abay bewaqoof admi, how does that foot taste in your mouth.

    260 has nothing to do with “primacy’ in Al Jihad Case. Why did they wait so long to introduce this in 260? The reason behind the LFO had to do with making deliberation redundant in other matters.

    Why don’t you just be a man and admit when you are wrong clearly.
    I’ll take your last post as a partial and cowardly admission that you were wrong.

    Now before you run away …tell us how the definition of consultation in 260 added by LFO 2002 has anything to do with al jihad case. Where is this primacy you keep talking of …have you even read the Al Jihad case.

    Now don’t flee away like a coward. Answer the question.

  36. yasserlatifhamdani

    Does the Al Jihad case establish the primacy of CJP’s opinion?

    Al Jihad Trust Case states:

    The Chief Justice of a High Court and the Chief Justice of Pakistan are well equipped to assess as to the knowledge and suitability of a candidate for judgeship in the superior Courts, whereas the Governor of a Province and the Federal Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. No one of the above consultees/functionaries is less important or inferior to the other. All are important in their respective spheres.

    I wrote in my article above (without reading this part of the Al Jihad Case mind you):

    The objective should be to establish the dominance of the executive in matters of ideology and background and the Chief Justice should play a role in making a call on the legal acumen of the proposed judge

    …. Now does the 2002 judgment limit or restrict the seniority principle?

    Judges Case 2002 says:

    The above role and functions of the Chief Justice of Pakistan will become redundant and superfluous if the rule of seniority is held
    applicable to the appointment of the Judges of the Supreme Court because in that eventuality the process would become automatic

  37. hoss

    Rabia
    “since the issue of judicial appointments is such a combustible one, it is better to openly ‘politicize’ it in the sense that a nomination should have to pass a vote in the Senate or NA.”

    As far as I can remember this is the first time the judge’s appointment has been made an issue. Where does that combustible come from? Even the Dogar SC got its appointments without a whimper from anyone in the government. Since those appointments were illegal, they had to be rescinded. The PPP or especially Zardari made this an issue for no rhyme and reason at all. Zardari wants to pick bones with the civilian institutions because he thinks he can win those battles. The truth is there is so much lack of good will for Zardari that if a lowly city councilor stands up to him, the public would support the city councilor.

    I am not sure what goes on in Zardari’s head. He knows that Army does not want him to interfere in any issue that relates to any important subject. The Army has effectively turned him in to a new Rafiq Tarar. It is just a matter of Zardari recognizing this reality. As I said in my previous posts this was a political matter and would have to be settled politically and that is what happened. It took a statement from Nawaz Sharif and perhaps one phone call from a Brigadier on behalf of the GHQ for Zardari to back out swiftly.

    “the US method of judicial appointment is worth considering because both India and Pakistan emulate the US in giving a great deal of power to the supreme court e.g. judicial review”

    Are you really this ignorant? Pak and India don’t emulate US. They follow the process developed over the course of many centuries by many schools of thoughts. Every Supreme Court in the world has inherent ability of judicial review. Now of course that may not happen in a country where constitution explicitly bars such ability. In Pakistan even during the frequent army rules and over many constitutions, the Supreme Courts over the years had that ability. In many instances the courts have exercised those rights, rightly or not is another debate.

    The system in Pakistan works fine and the independence of the court system is relevant to the independence of the other civilian institutions in Pakistan. As the democratic processes are strengthened, the appointment process would be further refined in the sense that the Judges would be under less pressure and more independent in making decisions after appointments.

    There has been a long standing demand in Pakistan that judiciary and administration should be separated and I agree with that demand.

    “If the Supreme court has extensive powers of judicial review then the Chief Justice should not be given primacy in judicial appointments”

    The only thing I can agree with is that no one person should be given powers and the CJ in Pak is not the sole arbitrator. Had Zardari shown that the CJ’s recommended persons that had prior criminal record or any other disqualification, I doubt the CJ would have prevailed. In this particular instance, the CJ actually made recommendation from a pool that was already in the LHC so all those were already qualified. It was a matter of who the CJ wanted elevated. The CJ wanted his man to remain the chief of LHC and nobody has shown that there was anything wrong with that.

    Groki, I understood you well but I wanted to show some examples of the Judge who could not rise above their prejudices compared to Judge Souter who did.

  38. Gorki

    Hoss:

    “Groki, I understood you well but I wanted to show some examples of the Judge who could not rise above their prejudices compared to Judge Souter who did.”

    In that case, it is a matter of our own personal opinion who ‘rose above their prejudice’ and who did not.
    For liberals like me, Souter was the impartial and fair one while Justice Thomas is a very biased conservative judge. OTOH for conservatives, it is the other way round.😉 .

    The important thing is that both extremes of the political spectrum agree that it is very important to see that the judiciary remains completely independent and free from interference by anyone
    after a Judge is elevated.

    Regards.

  39. Rabia

    “Every Supreme Court in the world has inherent ability of judicial review. ”

    absolutely incorrect. Before 1920 the only two countries in the world that had judicial review as a function of the supreme court were the US and Australia. Even today many countries have separate constitutional courts to handle judicial review of primary legislation.

    You are especially ignorant if you think that judicial review is part of the English legal tradition. England, because of its doctrine of parliamentary sovereignty does NOT allow judicial review of primary legislation (i.e. acts of parliament). e.g. Canada, that followed parliamentary sovereignty did not introduce judicial review until 1982.

  40. hoss

    “Before 1920 the only two countries in the world that had judicial review as a function of the supreme court were the US and Australia.”

    So that was the only help you got from google? From US to now we can say, Pak and India emulated Australia too.

    Little knowledge is a dangerous thing.

  41. yasserlatifhamdani

    Hoss mian,

    That comment to Rabia makes no sense at all. Please enlighten us.