Fwd: "Fakhruddin G. Ebrahim Comments about the Present Judicial Crisis"

[Omar Javaid]

"Fakhruddin G. Ebrahim Comments about the Present Judicial Crisis"

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Fakhruddin G. Ebrahim Comments about the Present Judicial Crisis Posted: 14 Feb 2010 08:42 AM PST by Justice (retd) Fakhruddin G. Ebrahim @ Teeth Maestro  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 Lahore 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.

Dare to Think Posted: 14 Feb 2010 08:33 AM PST I was surprised by the knock. It was late at night and I was the only guest. I opened the door. It was the manager along with the cook. “Sir, we wanted to ask you something that has been troubling us for the past few days?” “Sure,” I replied while asking them in. The guest house belonged to Dr. A. Q. Khan Research Labs (KRL), where I had come to conduct a workshop. KRL is Pakistan’s nuclear research powerhouse with some of the finest scientists that you can find under the sun. After being seated, the cook spoke, “Sir, our scientists have brains so big that it would take us a few lifetimes to have our brains grow to that size!” I was amazed at the clarity of the expression knowing that here was an unschooled young man with his whole world limited to his village and now Rawalpindi, a town next to Islamabad, the capital of Pakistan. “You are right” I said knowing that I had in my workshop seasoned PhDs in subjects such as nuclear physics, power electronics, vibrations and vacuum systems. And these scientists know how to make things happen; just ask Dr. ElBaradei, the former Director General of the International Atomic Energy Agency (IAEA). “Sir,” the cook continued, “everyday these scientists spend the whole day in your class. We don’t understand what is it that youare teaching them?” I was stumped. What a wonderful observation! And what a wonderful predicament! How do I explain to these simple folks that I teach organizational restructuring based on strategic visions and then introduce the framework for converting these visions into short term actionable and quantifiable plans? I was pushed into deep thought. “I cannot teach anybody anything,” Socrates once said, “I can only make them think.” Socrates believed that people can’t be taught; rather people can be facilitated to discover what they already know. I disagree with him. It is only partly true. Through prophetic revelations we learn many things that we didn’t know before. Socrates was known to exaggerate. I believe that he was purposely exaggerating to provoke people because provocation forces people to think; for this, I respect the guy for his noble agenda to force people to examine their beliefs, their assumptions and their paradigms. No wonder he made so many enemies. I have come to believe that sincere people who disbelieve us and challenge us are one of our greatest assets. Professors know it. Teachers know it. Trainers, like I, know it. We all know that one of the best rewards of teaching is to come across a sincere, naïve and aggressive man or woman who doesn’t buy into what we hold to be correct or believe we know well. And if that person happens to be your spouse, then all the better! On that cold winter night in Rawalpindi, I realized that I had come across such people. In the few moments of silence that followed, by the grace of Allah (swt), a thought came to me which has indebted me to those simple men forever. “You know,” I carefully picked my words, “these scientists have knowledge much greater than mine. They are experts in their fields. I can’t teach anything that is related to their area of expertise.” I can see that they felt relieved. How can someone much younger and an outsider teach their scientists? It just didn’t make sense to them. And now I had vindicated them. They were right after all. I looked them in the eye and said, “You know what I teach?” I held their attention, “I teach people that if what you do today –however big or small –doesn’t impact the world a hundred years later then that doing is plain useless. It is just a waste of time.” I sat back. Amazingly their eyes glistened with understanding and smiles erupted. “You are right. This is absolutely true.” They were in complete agreement. I had told them something that they knew all along. “We now understand what you teach. That is something good that you are teaching. Keep it up.” Saying this and with satisfaction written all over their faces, they left me to rest. Not realizing that they had left me exactly the opposite: restless! I though about it for many days. I pondered and reflected and agonized. In my urge to make things simple –I questioned myself –had I lied to them or misled them? Then it dawned upon me that just like them, I had also known this all along my life; I had never clearly articulated it to others and most importantly, to myself. All I needed was an innocent question from those innocent men who had no fear of being called naïve, with no reservations and no artificial persona of ‘look we know’! And they taught me something that I had not been able to learn through books or by my travels across the globe. Look deep inside your heart and you will realize that you know it too: if what we do today doesn’t impact this world a hundred years down the road then it is simply a waste of time! Dr. Yousuf Al Qardawi writes that there are people who die before their death while being counted amongst the living; while others live much after their death because they leave behind good deeds, beneficial knowledge, pious children and able students who keep increasing their life. In the words of William Wallace, the character in the movie Braveheart: “Every man dies, but not every man really lives!” Please reflect on things that you know. Seek people who will challenge you. Hear them out patiently. Cherish them. You may have some valuable knowledge that is waiting to be discovered by none other than yourself. Keep in mind the words of Socrates, “An unexamined life is not worth living.” And my advice to you today: please dare to think! This article has been written by Suleman Ahmer, Founder and CEO Timelenders. This essay is copyrighted but can be freely reproduced by proper reference to the author.

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