question for legal eagles

Society Pakistan & World Affairs
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I have a question for lawyers types on GS if there are any. I just read the news that Iftikhar Chauhdry formed a 5-member bench for taking up the petitions regarding the 18th amendment. how exactly does that work? does the CJ have complete authority of who he picks in a bench? are there any rules or conventions to follow when picking a bench? and is it the same the world over?

I ask because if it is completely up to the CJ, then there is a fair bit of manipulation that can take place by picking certain judges to hear certain cases. for example, if you stick Ramday on any bench that hears a case that has a remotely religious angle to it, it is easy to predict which way Ramday is going to lean without even bothering with the details and facts of the case. one would think that there ought to be rules/conventions that are followed when convening a bench to hear cases. so, are there any?

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Re: question for legal eagles

so the story goes that the CJ has a Ludo dice.......

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Re: question for legal eagles

I think CJ has become more political. He wants to in press all the time. sanp ke beta sapola cj ke kehnay par kuch ziada hi uchal kood kar raha hay. CJ seems to be instrumental in motivating this sapola. It is surprised that why CJ is interfering in purely consitutional matters?

Aitezaz Ahsan must be regretting all his efforts and sacrifices in re-instating this political CJ

http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/03-cj-forms-five-member-bench-to-take-up-petitions-ss-09

CJ forms five-member bench to take up petitions

ISLAMABAD: Chief Justice Iftikhar Muhammad Chaudhry on Saturday constituted a five-member bench to hear petitions challenging parts of the 18th Amendment.
Headed by Justice Nasir Ul Mulk, the bench comprises Justice Raja Fayyaz Ahmed, Justice Jawad S Khawja, Justice Rehmat Hussain Jafferi and Justice Tariq Parvez.
The bench will take up the petitions on April 28.
The separate petitions filed by Supreme Court Bar Association, Ralwapindi Bar Association and Ejazul Haq challenged the Supreme Judicial Council and certain other parts of the 18th Amendment.
The petitioners argued that present Parliament is not a constituent assembly, and therefore it did not have the mandate to change the basic structure of the Constitution.
However, renowned lawyer and PPP leader Aitazaz Ahsan insisted that the Supreme Court cannot strike down any constitutional amendment.
Meanwhile the Lahore High Court Bar Association also decided to challenge four articles of the 18th Amendment. The LHCBA president has been given the authority to constitute a panel of lawyers for this petition.

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Re: question for legal eagles

Iftikhar Chauhdry is definitely losing credibility. some of the most honest, upright lawyer leaders like Aitzaz Ahsan, Ali Ahmed Kurd, Tariq Mehmood, Asma Jehangir, etc have started opposing the supreme court's shenanigans...

and is it not pathetic that now the SC is hearing petitions from Ijaz Ul Haq of all people.

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Re: question for legal eagles

When a petition is filed it must be heard. Just like how cases go to the Supreme Court in the US. And yes justices have biases, were you all asleep when Bush was in power and placed conservative supreme court justices? Or did that just skip your memories?

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http://www.daily.pk/pakistans-supreme-court-rejects-petition-seeking-musharraf-trial-9654/

the SC can reject petitions without hearing them on technical grounds among others. the above is just one example. there have been others.

please don’t make factually incorrect statements and try to pass them off as facts. in future, make sure you’re right about something before letting out all the hot air.

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Re: question for legal eagles

I've got a question for moderators. my posts have been edited twice in the past few days because I supposedly used "provocative language" which I don't deny... I probably did.

but the question I have is the above provocative or not? I think it is. I can find you other examples where mainstream politicians have been called haraamkhors, thieves, and all kinds of other wonderful names without any real proof. I don't see the mods editing those provocative posts. why is that?

or is the policy to edit provocative posts that you personally disagree with and leave those provocative posts untouched whose views you agree with?

ps. CM I don't mean to pick on you or get you in trouble. with a little bit of work, I could have found examples from people like zoab_khan, etc who were the ones I wanted to highlight/point out. I'm trying to make a point here. not picking on you personally.

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Re: question for legal eagles

[note] We expect everyone to discuss the issues in civilized manner. Name callings, personal attacks and the use profanity is against the forum rules. Mods do not read every post. We take actions when people complain or report abusive posts.[/note]

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Re: question for legal eagles

Yes and based on what technical grounds do you think it should be rejected? Please do post the legal and technical faults with each of these petitions.

Go on since you are so adamant that they should not be heard.

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Re: question for legal eagles

I wonder if the judges of the supreme courts or at least the lawyers in PPP know there could be conflict of interest while forming benches for hearing cases.

We seem to be on something here, which everyone else missed.

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Re: question for legal eagles

One could request a judge not hear certain cases, of if a judge feels in some way related to the matter and would not able make an impartial decision then. and it is very common in Pakistani courts, that on the day of hearing certain judge would declare "not before me".

Then the matter would be refer back to to CJ for forming new bunch.

So CJ would not consult with judges before forming the bunch, so these kind of things happens on hearing day only.

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Re: question for legal eagles

Whether court agree with constitution amendments or not it is not going to give up its inherited right to review the matter.

So even if court decided to hear this matter does not mean, they would overturn to amendments. All they could do is to hear to matter and decide that:-

  1. Court has right to examine any constitutional amendments if in conflict with foundation of constitution.
  2. All portions of 18th amendment is valid and all applications denied.

But in the current matter there are few issues are very important.

Judicial commission
Judicial commission matter, as current system gives too much power to on person (CJ) which need to look into it, the most favorable was India model where a commission purely consist of judiciary elements decide on new appointments.

Here we have a commission which is mix of political and judicial elements, which some how open door to political manipulation of future appointments. If one see the history of Pakistan no government tolerated purely independent judiciary.

Internal elections within political parties

18th ammendment has taken away refurbishments for political parties to have internal elections, thus making easier for dynastic politics (mind you it suits well to all major parties PML N (Nawaz dynasty, PML Q (Chouhadri dynasty, JUI F (Mufti mehmood dynasty) and PPP (Bhutto dynasty) and last not least ANP (Wail/Ghaffar Khan dynasty).

Members of parliaments would lose his/her seat on sole desecration of head of Party
As our parliament consists of elected members voted in by their relevant constituency. The effect of this amendment means the regardless of his votes he got, he would lose his seat as an when he earn displeasure of his party head.

This would not only make parliaments rubber stamp (as no MP dare to speak or vote independently) also a useless forum and changing our parliamentary democracy into dictatorship of few party heads.

And how about rights of peoples who voted in a particular person???

Honestly speaking, there might be some merit in forming judicial commission, but there is no way anyone with right frame of mind could defend last two.

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Re: question for legal eagles

As our parliament consists of elected members voted in by their relevant constituency. The effect of this amendment means the regardless of his votes he got, he would lose his seat as an when he earn displeasure of his party head.

This would not only make parliaments rubber stamp (as no MP dare to speak or vote independently) also a useless forum and changing our parliamentary democracy into dictatorship of few party heads.

And how about rights of peoples who voted in a particular person???

Honestly speaking, there might be some merit in forming judicial commission, but there is no way anyone with right frame of mind could defend last two.

The constitution amendments are serious matters, and given the dynastic nature of these parties, parliament was not even allowed (apart from the committee with limited participation from "the chosen ones") openly debate on this. Everything was approved within 2 days.

Given the circumstance it would be difficult to declare that is it reflection of common wisdom of parliament.

There is no way someone could effectively defend the amendment (concerning political parties or expulsion of member of parliaments), but these are more effective tools to protect dynastic politics.

On other side Judicial commission is smaller issue, in current system too much power concentrated in the hand of of person CJ, there must be mechanism to devolve it to institutional base.

Parliament failed to address this adequatly, now ball come back to CJ. I really hope he could come above himself and device a true and fair mechanism (would be pleasantly surprise if he do so).

I do not think (except judicial commission) government could put forward any reasonable argument to defend these objectionable amendments, so their only defense would be article 239 challenging courts right to examine it.

Since court decided to take up this matter, one thing is very clear that court is not going sit idle and allowing these politician to play havoc with constitution.

Thus resulting a clash between institutions. Previously Sajjd Ali Shah failed because NS government successfully engineer a revloult between judges, but present supreme court is too homogeneous to do same.