Democracy Wins!

[SSGPA1]

no. well how should i explain it

1 CJ sent a proposal which government didnt like
2 Then president was supposed to send written reply citing the reason (it didnt happen)
3 CJ should have reconsidered his recommendation and then send another summary to president (time never came)
.................. and by doin this they should reached some conclusion

gov should have done (2) and waited for (3) and then done something to show public that CJ is not being flexible

No the events unfolded like this:

1. CJP sent recommendations to make Justice Ramday an Ad-Hoc judge of the SCoP ut it was denied by the GoP and Justice Ramday retired.

2. CJP sent recommendation to elevate Justice Saqib to the SCoP which was also denied based on advice from PM Gillani (murshid pak sarkar.

3. CJP was informed and requested to review his recommendation.

4. No response from the CJP's office was issued officialy and now the GoP issued the notification of appointments.

**********************

ISLAMABAD: In a significant development, President Asif Ali Zardari on Saturday turned down a recommendation by Chief Justice Iftikhar Mohammad Chaudhry to elevate Justice Mian Saqib Nisar, senior puisne judge of the Lahore High Court, to fill the seat which has fallen vacant after the retirement of Khalilur Rahman Ramday.

“Keeping in view the lego-constitutional position, Prime Minister Yousuf Raza Gilani has advised President Asif Ali Zardari to request Chief Justice Iftikhar Mohammad Chaudhry to reconsider his recommendation of Dec 19, 2009, for making recommendation afresh for elevation of the senior-most judge of the LHC to the Supreme Court,” an official announcement issued here by the law ministry said.

It said LHC Chief Justice Khawaja Mohammad Sharif was the most senior judge and, therefore, it was his right to be elevated to the Supreme Court.

The announcement was seen by some analysts as a foretaste of a new wave of confrontation between the executive pitted against the judiciary.

But others stressed the need for laying down an unambiguous principle in the wake of three judgments regarding elevation of judges to the Supreme Court.

After considering the chief justice’s recommendation, the announcement said, the prime minister had advised the president that in view of the legal position and guidelines laid down in the Al Jihad Trust case (PLD 1996 SC 324), primacy should always be given to seniority in elevation of a high court judge to the Supreme Court unless found to be unsuitable by the CJP for such elevation.

“Thus the president, while accepting the advice of the prime minister, has also requested the chief justice to reconsider his earlier recommendation so that senior-most judge in the LHC (Justice Khawaja Sharif) is appointed as judge of the Supreme Court. The chief justice has been informed accordingly,” it said.

This is the second such request turned down by the government. Earlier, the government had refused to appoint Justice Khalilur Rehman Ramday as ad hoc judge after his retirement on Jan 12, citing the same reason of the command issued by the apex court in the Al-Jihad trust case.

According to Justice (retd) Tariq Mehmood, a prominent constitutional expert, if the name of Justice Saqib Nisar is sent by the chief justice for the second time in his fresh recommendation despite the reasons given by the president, the matter will then come before a bench of the Supreme Court for an authoritative decision.

He, however, was of the view that if rules of principle were to be followed in letter and spirit, seniority principle should be given primacy.

Quoting the Al-Jihad trust case, Mr Mehmood said every puisne judge had a legitimate expectancy to become the chief justice of a high court after the elevation of its chief justice.

Although former chief justice Sajjad Ali Shah was leading the bench that laid down the seniority principle in the Al-Jihad trust case in 1996, his own appointment was held illegal by a bench, headed by former chief justice Saiduzzaman Siddiqui, in the 1998 Malik Asad Ali case.

Later in the 2002 Supreme Court Bar Association’s case, another bench, headed by former chief justice Irshad Hasan Khan, had held that elevation in the Supreme Court was not a promotion, but a fresh appointment.

The judgment came against the backdrop of a controversy erupted when now retired judges -- Justices Khalilur Rehman Ramday, Mohammad Nawaz Abbasi and Faqir Mohammad Khokhar -- were elevated to the apex court, passing Justice Falak Sher who was chief justice of the LHC.

Justice Khokhar was then at 13th in the seniority list and was acting as law secretary.

After his appointment in the Supreme Court subsequently, Justice Falak Sher moved a reference to the government claiming that he was the senior-most judge then and, therefore, should be appointed as chief justice of the Supreme Court in place of Justice Iftikhar Mohammad Chaudhry. The reference is still pending.

MEETING

Law Minister Babar Awan has called a meeting in his ministry next week to hammer out the thorny issue of implementing the Supreme Court judgment on the controversial National Reconciliation Ordinance.

Attorney General Anwar Mansoor, Law Secretary Mirza Aqil and senior law advisers will attend the meeting called in line with the directives issued by the prime minister to implement the verdict.

DAWN.COM | Front Page | No presidential assent to CJ?s proposal

 

[ajpirzada]

^^
i was just hearing Justice (r) Tariq saying that 'consultation' in case of matters related to judiciary is binding on president. he said gov should have amended the constitution and improved its powers. also 'consultation' has been defined differently when it comes to appointin military generals.

and in the end Najam Sethi was of some different view. he said parliamentarians did not mean by 'consultation' what judiciary is taking it to be. and constitutions should be interpreted by the SC in its birth spirit and not today's spirit.

do watch this show:

Dunya Today – 13 February 2010 | Pakistan Politics

quite complicated

 

[SSGPA1]

and in the end Najam Sethi was of some different view. he said parliamentarians did not mean by 'consultation' what judiciary is taking it to be. and constitutions should be interpreted by the SC in its birth spirit and not today's spirit.

I agree with Najam Sethi that SCoP should interpret the constitution in is brith spirit. I was just reading the short verdict of the SC bench and I don't agree with the reason for the suspension of the notifications.

The verdict declared the government notification in violation of Article 177 of the state's constitution that prevents the president from appointing a supreme court judge without the consultation of the Chief Justice.

DAWN.COM | Pakistan | SC suspends presidential orders over judges' appointment

Consulation was conducted between the judiciary and the executive but they didn't agree and IMHO, President of Pakistan (even without 17th amend) holds the right and power to appoint judges in the light of Articles 177, 206 and 48.

I want Zardari out but through impeachement or mass protests.

PLEASE PAY ATTENTION TO THE PAY STRUCTURE AND BENEFITS OF THE JUDICIARY AS THAT HOLDS THE KEY TO THE STRENGTH OF JUDICAIRY.

 

[qsaark]

Consulation was conducted between the judiciary and the executive but they didn't agree and IMHO, President of Pakistan (even without 17th amend) holds the right and power to appoint judges in the light of Articles 177, 206 and 48.

As it has been said before, the word 'discretion' is not used in the constitution, hence the President does not hold any right to appoint the Justices if its is not endorsed by the Chief Justice. Why is that so? because we don't have a presidential system but a parliamentarian system which (whether you like or not) makes the President to take the 'adivce' from the PM, Cabinet or CJP in this case. In a parliamentarian system, the President has very limited role to play.

 

[Gin ka Pakistan]

Wait till few senior Army Generals will rtd and then see who will be selected by the President to make Army loyal to him. Nawaz was punished for doing so, let see what Army reaction to his selections would be. Time will tell

It will not stop at judicial appointments

 

[ajpirzada]

177. Appointment of Supreme Court Judges.

(1) 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.

(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and-

(a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or
(b) has for a period of, or for periods aggregating not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).

 

[qsaark]

I just finished listening the video link posted by Pirzada. I very carefully listened to Mr. Najam Sethi's point of view. Would you guys like to comment?

 

[SSGPA1]

As it has been said before, the word 'discretion' is not used in the constitution, hence the President does not hold any right to appoint the Justices if its is not endorsed by the Chief Justice. Why is that so? because we don't have a presidential system but a parliamentarian system which (whether you like or not) makes the President to take the 'adivce' from the PM, Cabinet or CJP in this case. In a parliamentarian system, the President has very limited role to play.

Endorsement and Consulation are two different words and word used here is consulation which means the CJP should be consulted (which was done) but no endorsement is required from the CJP.

One must read article 248 which clearly states whose advise the President need to follow and that is without hte powers granted by the 17th amendment.

President is bound to accept the advise of the Parliament, Cabinet and the PM but no where it says the CJP/ SCoP.

In the Parliamentarian system, President has this power so that a balance could be achieved amongst the Judiciary, Parliament and the Executive. That expalins the limited role so that there is always at least two votes in favour of a decission.

 

[ajpirzada]

old news but gud read about al jehad case


Judges, experts clarify confusion on Ramday issue

ISLAMABAD: Two major developments on Sunday almost buried the latest controversy over the ad hoc appointment of Justice Khalilur Rehman Ramday after his retirement on January 12, as Presidency sources said Ramday would be appointed by President Zardari without delay.

Confusion was created by some incorrect interpretations of the Al-Jihad Trust SC judgment, which were explained on Sunday.A credible and relevant source in the Presidency told our sources it is absolutely incorrect that President Asif Zardari has decided not to accept recommendation of Chief Justice Iftikhar Muhammad Chaudhry regarding appointment of Justice Khalilur Rahman Ramday as an ad hoc judge of the Supreme Court after his retirement on January 12, 2010.

The source said according to his information there is no sign or chance that the president will reject the recommendation. He said the news items in the media are speculative and are being spread by some vested interests in the law ministry.

On the other hand, Presidential spokesman Farhatullah Babar told our sources on Sunday evening it is very unfortunate and incorrect to say that the president has already decided to reject the recommendation which the presidency has not even received as yet.

“I can confirm that till the Sunday night the presidency had not received the recommendation of Justice Ramday to be appointed as an ad hoc judge of the Supreme Court,” Farhatullah Babar said, adding: “No decision has been made so far in this regard and he will be in a position to speak on the issue once the presidency receives this recommendation.”

The source in the presidency, however, asserted according to his knowledge, the president would take no time in accepting any recommendation in this regard after it is received. The other major development was the statement of Habib Wahabul Khairi, the founder of the Al-Jihad Trust and winner of the historic Judges Case of 1996, which laid down the basic rules and regulations for the appointment of judges.

Khairi, while talking to our sources, said confusion regarding the judgment in his case was being deliberately spread and some people are trying to befool the people through wrong interpretations of the judgment. Khairi said at no point the Al-Jihad Trust case judgment declares that the senior most chief justice of a high court will be elevated to the Supreme Court.

“Besides giving the concept of legitimate expectancy to be considered for higher judicial appointments in the judgment, it remains the discretion of the chief justice to recommend elevation of either the chief justice of a high court or the senior most judge of that high court as a judge of the Supreme Court.

“In the present case, the chief justice has full constitutional powers and authority to recommend Justice Saqib Nisar for elevation to the Supreme Court and not consider Lahore High Court Chief Justice Khwaja Sharif Ahmad for this elevation,” Khairi said, adding: “At no point the Al-Jihad Trust case judgment says that a superseded judge will have to resign.”

Khairi said the judgment of the Al-Jihad Trust Case has been misunderstood by some people regarding ad hoc appointments. “One thing should be made clear that the judgment of the Al-Jihad Trust Case dealt with a specific situation and it in no way challenges, alters or deletes the method already written and powers conferred on the chief justice of Pakistan in the Constitution of Pakistan under Article 182 for the appointment of an ad hoc judge of the Supreme Court.”

Khairi said as the recommendation of the judge of the Lahore High Court to be elevated to the Supreme Court has been made by the chief justice, there is no vacancy in the Supreme Court. “Secondly, even if recommendation is not made judgment of Al-Jihad Trust Case does not amend the Constitution and in accordance with Article 182, the chief justice of the Supreme Court could write for any ad hoc appointment and the 1996 Judges Case verdict does not apply to the present situation.”

Former chief justice of Pakistan Justice Saeeduzzaman Siddiqui told our sources on Sunday at no point the Al-Jihad Trust Case judgment binds the chief justice to recommend the chief justice of a high court to be elevated as judge of the Supreme Court and the chief justice could recommend number two or even number three senior most judge for this elevation.

He said confusion in this regard has been created because of intermixing of the Al-Jihad Trust Case with Malik Asad Case by some people. He said in Malik Asad case, he himself headed the bench, which gave the verdict in 1997 that senior most judge of a high court will become the chief justice of that high court and senior most judge of the Supreme Court will become the chief justice of Pakistan. He said what needed to be understood is that the seniority principle is not applied in the issue of elevation of high court judge to the Supreme Court.

Justice Siddiqui declared if the chief justice recommends Justice Saqib Nisar, who is second in seniority, for elevation to the Supreme Court and ignores the chief justice of the same high court, neither the Constitution nor the Al-Jihad Trust case bars him from doing so.

The former chief justice of Pakistan said if the chief justice has recommended the appointment of Justice Saqib Nisar to fill the only vacant post in the Supreme Court there is no problem with reference to the Al-Jihad Trust Case judgment and it does not influence the appointment of Justice Ramday as an ad hoc judge of the Supreme Court.

Former Supreme Court judge Justice Wajihuddin Ahmad told our sources that those trying to create confusion need to understand two things: seniority and fitness. Wajih said appointment of a judge on a permanent position is entirely different from the appointment of a judge on ad hoc basis.

He said while making appointments in high courts and the Supreme Court criteria of seniority-cum-fitness is considered but seniority has top priority. While making the appointments on ad hoc basis in the Supreme Court the criteria is the same but here fitness is more relevant.

He said ad hoc appointments are made in accordance with Article 182 of the Constitution and here the chief justice does not ‘recommend’ but according to exact words of the Constitution ‘writes’ to the judge, with approval of the president, informing him of his appointment as an ad hoc judge.

Justice Wajih said the Al-Jihad Trust Case judgment was comprehensive and has laid the basis for the appointment of judges. But, as far as the appointment of ad hoc judges is concerned in the resent situation not a single point of this historic judgment bars the appointment of any ad hoc judge.

Wajih also declared that recommendation of Justice Saqib Nisar to be elevated to the Supreme Court was absolutely in accordance with the law and the Al-Jihad Trust Case judgment. The appointment of Justice Ramday as an ad hoc judge was also not in conflict with either the Constitution or this ‘96 judgment.

Judges, experts clarify confusion on Ramday issue

 

[qsaark]

One must read article 248 which clearly states whose advise the President need to follow and that is without hte powers granted by the 17th amendment.

Article 248 does not say any such thing; the article is about the "Protection to President, Governor, Minister, etc".

 

[SSGPA1]

Article 248 does not say any such thing; the article is about the "Protection to President, Governor, Minister, etc".

My appologies for the typo, it is 48 and not 248:

[48. President to act on advice, etc.
(1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet [25][or the Prime Minister].
[26][Provided that the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.]
(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [26A][and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever].
[26B]
(4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority.
(5) Where the President dissolves the National Assembly, he shall, in his discretion,:
(a) appoint a date, not later than [26C] [ninety] days from the date of the dissolution, for the holding of a general election to the Assembly; and
(b) appoint a care-taker Cabinet.
(6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by "Yes" or "No".
(7) An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.]

[Chapter 1: The President] of [Part III: The Federation of Pakistan]

 

[SSGPA1]

Now this is also every interesting:

48 (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [26A][and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever].
[26B]

President has the power to appoint judges after consulting with the CJP. Since both branches couldn't agree the power rests with the Executive branch because the PM also advised the President to do the same.

Article above further nullifies the SC bench decission for the suspension of the appointments.

What next?

If Justice Sharif refuses to accept the appointment then he will be considered retired as per the following article:

[206 Resignation,
(1)] A Judge of the Supreme Court or a High Court may resign his office by writing under his hand addressed to the President.

[229] [(2) A Judge of a High Court who does not accept appointment as a Judge of the Supreme Court shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.]

 

[ajpirzada]

the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so

i judges case president has no ultimate power. he has to do it in 'consulation' with CJ. here the only issue is how to define consultation.
now no where it says that the high court chief justice can be the only nominee for SC. CJ, without violating any stated code, recommended senior most judge of LHC to be appointed as SC judge. President in return rejected the summary without citing any solid reason (such as violation of constitution or nominee's character etc).

 

[qsaark]

Article above further nullifies the SC bench decission for the suspension of the appointments.

Honorable Justices know the constitution by heart, not only that, they understand its clauses as well. Justice Choudhry would have never formed the bench, and the three honorable Justices would have never suspended the Presidential orders if they were playing on a weak lego-constitutional wicket.

 

[SSGPA1]

Honorable Justices know the constitution by heart, not only that, they understand its clauses as well. Justice Choudhry would have never formed the bench, and the three honorable Justices would have never suspended the Presidential orders if they were playing on a weak lego-constitutional wicket.

I agree 100% but I think CJP and co. have played into the hands of our politicians.

This will be a very tough challenge.

If NS sides with the CJP then the power of lawyers will be divided, from top to bottom, i.e. PPPP vs. PML-N.