Supreme Court of Pakistan

[Nadia_H]

http://www.scp.com.pk They have a nice website. i have a question - how are the Justices on the Supreme Court of Pakistan chosen? On their website it says:

The Chief Justice of Pakistan is appointed by the President and the other Judges are also appointed by the President but after consultation with the Chief Justice of Pakistan. The most senior Judge, in the absence of 'solid and strong reasons', to be recorded by the President, is appointed as the Chief Justice of Pakistan.

So basically the Chief Justice --> appointed by President
Judges --> appointed by President, after consultation w/ Chief Justice

Was it always this way or is this a recent thing? Did it start off in this manner - that the Judges have always been appointed? Have there been any calls for reforming this so that Judges at least, if not the Chief Justice, are elected not appointed?

By the way as an aside basically the same procedure as above exists in Canada. But i think other countries have different systems where some of the Judges, after sitting for a period of 5-7 years, have to be elected (in direct elections?) if they want to continue their terms.

[ahmadjee]

Great question Nadia!

I suspect this system has been in place since Ayub, where President's powers for the first time were over exceeded. In Bhutto & other civilian governments might have kept the system for lip service where President still nominates the SCJ but that nomination is for whoever PM picks for the job.

But please don't quote me on this.

[ChthonicPowers]

...and to think that this country's first CJ refused to entertain a request by Jinnah just because it allow people to question his integrity.

Some CJs have been honest but by large the military, more than the executive has been screwing the Justic system. I've heard former CJ's mention this on TV. Justice system needs reforms in Pakistan.

[Zakk]

Nadia: You have fiction and reality in Pakistan's Judicial system. Let me explain the basics for anyone reading this thread before i answer.


1) The Supreme Court of Pakistan has no jurisdiction over around 50% of the country's territory. IT has no writ over the Tribal areas, or The Northern Areas or well over 90% of Baluchistan. Essentially those areas are run by civil servants/local leaders who basically have total power.

2) This idea that Pakistan's Supreme Court is in any sense or form independant is also a bit of a joke, the lower courts are answerable to the provincial law minister--> The Governor so you have the executive branch of government having judicial powers. Pakistans Supreme Court has only twice ever gone against the wishes of the Federal government, the second time the end result was the storming of the Supreme Court by various thugs of the ruling party ( in true Pakistani fashion those same thugs are now loyal supporters of Pervaiz Musharraf)

3) Corruption in South Asia depends on the simple premise of patron-client relationships. People in positions of influence have massive levels of discretionary powers at their disposal, a colonial style power structure which is used to keep the people in check..
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Now to answer your questions:

1) Yes AFAIK the 1973 constitution gives discretionary power to appoint the Chief Justice to the President who I think must consult the Prime Minister.

2) The rule of thumb the Chief Justice is usually the senior most Judge. Seniority is not always the guiding principle.

3) Several attempts have been made to reform the system, in the mid '90's you had a round of Judicial activism and attempts to reform the Judicial system..sadly as mentioned earlier the end result was the storming of the Supreme Court.

4) More recently a group of lawyer mostly based in Lahore have campaigned for the establishment of an indeoendant commission which would decide the appointment of Judges. The leader of the group is a man called Hamid Khan...he's written a book on the subject Constitutional and Political History of Pakistan
...another book worth looking around for is Sajjad Ali Shahs book Law Courts in a Glass House

[ahmadjee]

Zakk, how were the CJs appointed before 1973?

[Zakk]

I believe it was fairly similar Ahmadjee, the Supreme Court was smaller and called the Federal Court at that time. Again discretionary appointments.

[Nadia_H]

Originally posted by Zakk:
2) This idea that Pakistan's Supreme Court is in any sense or form independant is also a bit of a joke, the lower courts are answerable to the provincial law minister--> The Governor so you have the executive branch of government having judicial powers. Pakistans Supreme Court has only twice ever gone against the wishes of the Federal government, the second time the end result was the storming of the Supreme Court by various thugs of the ruling party ( in true Pakistani fashion those same thugs are now loyal supporters of Pervaiz Musharraf)

wow Zakk, Masha'Allah. i am impressed. Many many thanks for the detailed, very very interesting answer.

For a little comparative check-up, judicial reform within Canada is a very hot topic. The few times that the Supreme Court went against the government [it was a provincial government, though, not federal] was to protect the rights of a Jehovah's Witness guy... it happened in Quebec, where majority of Quebecers are Roman Catholic. On ONE occasion that i know of, one of the Supreme Court Justices openly criticized the federal govt. He offered his resignation shortly after.

hmm anyways Thanks yaar. What you wrote is really helpful, and i really appreciate it. It was exactly what i wanted, and more. i'm gonna check out those books, if my library has them.

[Zakk]

Nadia; Just to add 2 more points that maybe of interest:

1) Only the Pakistan High Courts and Supreme Courts can grant citizens the right guaranteed in every other democracies lower courts that is habeus corpus petitions. ---> just to explain A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

2) Pakistans High and Lower Court judges can only have cases of corruption or incompetence filed by the President or the Governors.

[Nadia_H]

Zakk, Sorry for the late reply. Just wanted to say thanks for those two additional bits of info. i appreciate the time you took in responding to my questions Thanks.