Govt Vs Judiciary: Who Stands Where

Usman Manzoor of  The News enlightens us of the legal arguments in favor of the government and counter arguments in favor of the SC, in the ongoing tussle between the executive and the judiciary which erupted when the SC suspended a notification by President Zardari, appointing Chief Justice Lahore High Court Justice Khwaja Sharif as a judge of the Supreme Court while elevating Justice Saqib Nisar, senior judge of the LHC as acting Chief Justice of the High Court.


By Usman Manzoor

While the government is keeping mum over its failed adventure to subdue the country’s independent judiciary, only a few constitutional and legal experts are trying to defend the government’s action.

Only a respected jurist Fakhruddin G Ebrahim had the courage to immediately correct himself, after issuing an ill-informed interpretation. For the guidance of readers, the arguments generally being presented to defend the government are as follows. The Constitutional position is also given below:

Arguments in favour of government:

1. The president has powers to appoint judges of the SC under Article 177 of Constitution.

2.The president has consulted the CJ as written correspondence was done with the head of judiciary.

3.The govt has followed the rule of seniority as mentioned in the Al-Jehad trust case while appointing Justice Khawaja Sharif as judge of the Supreme Court.

4. The consultation of CJP is not binding on the president.

5. The president can appoint acting CJ of a high court under section 196 of the Constitution without consulting the CJ.

6.What was the necessity of suspending the presidential notification so late in the evening?

7. We acted according to Constitution and the law.

The response

1) Article 177 (1) says: The CJP shall be appointed by the president, and each of the other judges shall be appointed by the president after consultation with the chief justice.

The consultation of the CJ is mandatory as mentioned in Article 260 of the Constitution which says “consultation” shall, save in respect of appointment of judges of the SC and High Courts, mean discussion and deliberation, which shall not be binding on the president.

2) A mere correspondence does not mean consultation but in fact the recommendation of CJP regarding appointment of a judge in the SC has to be followed as it is and if the president has any objection then he has to mention those reasonable objections. Those objections are then justiciable in a court of law and once the court passes an order then that order is the final verdict.

The Al-Jihad trust case states: “The words “after consultation” employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the CJP and the CJ of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by President/Executive.

(xiii) That since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.”

3) The appointment of a judge of a Supreme Court is a fresh appointment and neither the constitution nor the Al-jehad trust case or any other judgment speaks of seniority rule while elevating a judge of a High Court to the SC. Even in the present SC eight out of the total 16 (including one ad hoc judge) have never remained chief justices of the high courts.

Article 177 says: “Appointment of SC Judges.

(1) The CJP shall be appointed by President, and each of other Judges shall be appointed by President after consultation with the Chief Justice.

(2) A person shall not be appointed a Judge of the SC 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 HC 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).” There is no mention of seniority in this article.

4) The consultation regarding the appointment of judges of the superior judiciary is binding on the president according to Article 260 of the constitution which says, “Consultation shall, save in respect of appointments of Judges of the Supreme Court and High Courts, mean discussion and deliberation which shall not be binding on the President”.

The word save here means except or to avoid.

5) The Al-Jehad trust case clearly mentions, “That permanent Chief Justices should be appointed in the High Courts where there is no permanent incumbent of the office of the Chief Justice”. Therefore Justice Saqib Nisar could never be made acting CJ.

6) A similar situation had occurred on the eve of November 3, 2007 and an eight-member bench of the SC passed a verdict setting aside the emergency rule late that Saturday. And in the interim order of Feb 13, the learned judges of the SC have mentioned, “The Additional Registrar, who appeared on Court’s call, informed the Court that a news was telecast in the electronic media regarding the aforesaid notifications and it was also in the news that Mr. Justice Mian Saqib Nisar would be administered oath by tomorrow morning (Sunday), which necessitated the hearing of this case as an urgent one and this Bench was constituted”.

7) the Al-jehad trust case and the constitution was already there and the Supreme court also interpreted it.

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About mak009x
A 15 year old O levels student, crazy about tech, loves politics!

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