Pakistan caught between Judicial Anarchy & Judicial Activism

Recent History of Pakistan [1999 – 2008] tells us something different about the Rule of Law, Constitution, Democracy, PCO, LFO, and Rampant Human Rights Violations under the very Judiciary indulged in Narcissism and Vanity. Aren’t there any Quranic Verses and Hadiths on the following misconduct?

In the famous case of Al-Jehad Trust v. Federation of Pakistan, the SC strongly deprecated the practice of appointing persons on a temporary or ad hoc basis against permanent posts. It was held that this was one of the oft-employed devices to keep judges off balance and compromise their independence. With regard to the practice of appointing acting chief justices for long periods instead of appointing permanent chief justices, it was observed “unfortunately during martial law days, the practice of appointing acting chief justices for long periods was adopted apparently with the intention of keeping the judiciary under the control of the executive… It militated against the concept of independence of judiciary”. At the same time, Ajmal Mian J. observed “the parity of reasoning for not appointing an acting chief justice or an acting judge of the Supreme Court against permanent vacancies for a long period is equally applicable to an appointment of an additional judge in the high court against a permanent vacancy”. On this rationale, the SC held that a person appointed as an additional judge against a permanent vacancy in the high court acquired a legitimate expectancy to be confirmed as a permanent judge and the government could not, under ordinary circumstances, refuse the chief justice’s recommendation for confirmation of such an additional judge. Unfortunately, all the learned members of the Judicial Commission — the judges, the bar council representatives and the representatives of the concerned governments — chose to ignore the spirit behind the Al-Jehad judgment. Can it really be that none of the 50-odd additional judges (appointed on the recommendation of the chief justice) are presently fit for confirmation? And if any of these judges was fit for confirmation, surely it was against the principles of judicial independence to merely grant him an extension? And was it fair to lump such a competent and honest judge in the same category of judges who were not deserving of confirmation? In the present time when many of the most competent bar members are reluctant to join the bench, this disregard of the principle of legitimate expectancy shall create uncertainty and encourage the best and brightest to shun judicial service. One year is more than enough to gauge the competence and integrity of a judge. If, at the end of the year, he is considered suitable, he deserves to be confirmed. If not, he should be let go. The present members of the Judicial Commission will be setting precedents for all after them. They must avoid any practice that detracts from judicial independence in the long term.

REFERENCE: Judicial appointments By Salahuddin Ahmed | From the Newspaper February 9, 2011 (2 weeks ago)

SCBA against reappointment of adhoc judges (Express Tribune)
* Council reiterates resolve to eliminate ad hocism in judiciary

ISLAMABAD: The executive committee meeting of the Pakistan Bar Council (PBC), in a resolution on Thursday, held the move of including Justice Khalilur Rehman Ramday, who retired on February 17, and Justice Rahmat Hussain Jaffery, who retired a few months ago, in a full court meeting, in violation of Article 182 of the constitution as amended under the 19th constitutional amendment and unprecedented. The meeting chaired by executive committee chairman Asrarul Haq Mian and vice chairman Abdul Lateef Afridi was attended by its members, including Syed Qalb-e-Hassan, Muhammad Ahsan Bhoon, Muhammad Ramzan Chaudhry, Salahuddin Panhwar, Mian Abbas Ahmad, Akhtar Hussain and Muhammad Yaseen Azad. The meeting took serious note of the resolution passed by the full court of the Supreme Court for re-induction of Justice Ramday and Justice (r) Jaffery.
Judges VS Lawyers – Part – 1 (Dunya TV 17th Feb 2011)
“The PBC executive committee and the legal community in general is always appreciative of the principles laid down in Al-Jehad Trust case with respect to independence of judiciary and against ad hocism, thus the resolution passed by the full court is also against the spirit of the Al Jehad case verdict and further the ad hoc appointments in such a manner also militates the independence of judiciary and is violation of even July 31, 2009 verdict declaring the November 3, 2007 emergency as unconstitutional,” the PBC resolution said. The meeting reiterated an earlier resolution passed in the 190th meeting of the PBC wherein it was resolved that ad hocism in judiciary will be eliminated in all circumstances. The executive committee, while taking serious note of an order passed by dysfunctional judge of the Peshawar High Court, Justice Jahanzeb Rahim, issuing contempt notices to the Supreme Court judges and also requesting the president of Pakistan to file references against the chief justice and Justice Mian Shakirullah Jan, said that such orders were highly condemnable and seemed to disrupt the whole system. The meeting also express serious concern over the order passed by the apex court suspending the decision of a parliamentary committee with respect to non-confirmation of four judges of the Lahore High Court and extension of the period of additional judges in different high courts, and requested the PBC chairman to call a council meeting on 23rd to dilate upon all these matters which were concerning not only the legal profession, judiciary but also the public at large. The copy of the resolution was forwarded to all the members of the judicial commission, the parliamentary committee, presidents of all the bar associations throughout the country for information.

REFERENCE: Full court’s resolution on judges’ reappointment unconstitutional: PBC Staff Report Friday, February 18, 2011\02\18\story_18-2-2011_pg7_2

ISLAMABAD: The higher judiciary finds itself at a familiar crossroads, publicly at odds with each other and questioning one another’s conduct. On Thursday, the Supreme Court constituted a seven-member bench to hear the intra-court appeals of two sitting but non-functional judges it has charged with contempt while a Peshawar High Court (PHC) judge challenged the move the same day. Justice Jahanzeb Rahim, a non-functional judge of the PHC, issued contempt notices against four Supreme Court judges, asking that they appear before him on Monday — a day when he himself, along with five sitting and two former judges, have to appear before the Supreme Court for contempt of court trial. Justice Jahanzeb is the judge whose controversial complaint through a March 5, 2007, letter to former president Pervez Musharraf became a forerunner of the events that led to the chief justice being suspended. On March 9, 2007, the former president also initiated a reference of misconduct against the CJ.
“This is an ominous development in a series of sombre ones that have hurt the state for the last few years,” commented a senior Supreme Court lawyer. In a sign that the Supreme Court has realised the seriousness of Justice Jahanzeb’s move, Chief Justice Iftikhar Mohammad Chaudhry constituted a special seven-judge bench to hear the intra-court appeals of two non-functional Lahore High Court judges — Justice Shabbar Raza Rizvi and Justice Hasnat Ahmed Khan. They had appealed against the apex court’s decision of proceeding against the judges who had taken oath after Nov 3, 2007. The seven-member bench will start hearing the appeals on Friday.
Judges VS Lawyers – Part – 2 (Dunya TV 17th Feb 2011)

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