Presidential Notification was Constitutional, But. . . .

Honourable Justice (R) Fakhruddin G. Ebraheem writes about the current judicial crisis developed after the late night suspension of presidential notification by the Chief Justice of pakistan

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. Justice (retd) Fakhruddin G. Ebrahim

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47 thoughts on “Presidential Notification was Constitutional, But. . . .

  1. A.M.H.Kango says:

    Justice (retd) Fakhruddin G. Ibrahim’s statement has no logic, when he says that CJ’s recommendation is binding on the government. He forgets that the final decision lies with Head of the State. Unfortunately, the conditions have been created to politicize judiciary and by constantly maligning the President (who so ever he is, he is symbol of state) the street opinion has been developed against a sitting head of state. Again, the CJ discarded seniority, what are the controls to restrain him? What is meaning of consultation and what is meant by binding? Can any illogical suggestion be a binding. The difference between interpretation and judgement must be understood. This could be considered as clear interference in executive’s functions. Who will decide it? Street power?

    Like

    • asad jamal says:

      I think what A M H Kango is saying makes sense and what Hon’ble Mr. Ebrahim says flows more from sincerity of an honest man rather than current logic. Article 177 says: “The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice”. If the president with the adviice of the PM appoints the CJP what principle will be followed? The President will appoint the CJP but not the judges, doesn’t make much sense. Actually, it was the Al Jihad Trust case which laid down that consultation did not mean what it really means i.e. ‘mushawarat’, but an advice which would be binding on the executive. This was malicious, to say the least. Because it is trite principle of interpretation of statutes that words are taken to mean as they are ordinarily understood. Interestingly, the Al Jihad Trust judgment has not been followed even by the judiciary itself.

      Why should it be assumed that the CJs know all about who may and who may not be elevated? Why should the process be kept non-transparent? Why should we not demand transparency in the affairs of the judiciary.

      Giving primacy to the chief justices actually and practically means that you are excluding the representatives of the people out of the process. The PPP has been stung many a time by biased judges. No one is talking about the procedure proposed in the COD. There is politics to that: PML N says COD be implemented but on the conditions it may impose. The Chief Justice knows it will kill the sting. That’s why the SC have reaffirmed the doctrine of basic features. The moment the parliament amends the constitutional procedures concerning the judiciary, it will be struck down.
      Today, egos have the primacy rather than public interest.

      Asad Jamal
      Advocate

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      • Marvi Sirmed says:

        It is a great pleasure to see the comments from both of you gentlemen. My swollen nerve endings are gradually going to peace, there are at least some people left in this fateful nation who give trouble to brain and think for themselves instead of blindly following the rhetoric induced by a hawkish media.

        Yes Asad, A M H kango sahib, indeed HOnourable FGE in missing the point here. All of us seem to be missing why Mian Nawaz Sharif is so anxious to have Khowaja sahib back in LHC!

        Please my column in tomorrow’s Dali Times, on this.

        Thanks for writing sires!

        Like

  2. Jamal Mustafa says:

    I endorse the views of AH Kango. Beside, I must mention one very important that if Justice Shareef is not capable /eligible enough to be the Judge of Supreme Court then why is he holding the Office of CJ LHC.
    Why only seniority principle for selection of CJP which is appointed by President [means president has no power to appoint any judge from the sitting judges of SC for the post of CJP] while when it comes to elevation of judge to supreme court from high court then only CJP’s recommendation is considered as final.
    In consultations i think it doesn’t mean recommendation.

    Anyways, we are strongly feeling that CJP is doing this because Mr. Zardari is President of Pakistan. Why CJP is not making evening sitting for the hearing the over 120 k pending cases in higher courts. ?

    If president has commited anything wrong then what was the need to decide it in 3 hours? it could have been heared on monday.

    Why this hype was created ?

    CJP is highly controversial now, he should not behave like politician and get published his statment everyday in newspapers. He must do something to expedite the justice to the poor and needy.

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    • Marvi Sirmed says:

      Ver pertinent point Jamal Sahib. Absolutely, if CJP’s appointment has to be on seniority principle, why not other appointments? Also, I completely agree with the question you put to the SC, why the poor have to wait for their cases to be resolved for years? Why the courts do not work in the evenings in their cases to dispose them off on such emerent basis?

      Great contribution sir! Thanks.

      Like

  3. sun of sindh says:

    good justice Ebrahim got his non practicing and inefficient incompetent son inducted as High court judge with the blessings of cjp choudhri.He being party should avoid making comments having rendered himself disqualified.

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