babar sattar(lawyer and columnist) tried to analys this situation and comment on it dear members

ISLAMABAD: It is hard to fathom what could possibly possess the Zardari government to reject the summary of judicial appointments proposed by Chief Justice Iftikhar Muhammad Chaudhry and engage in a legal misadventure that is certain to have perilous consequences for the ruling party. The legal issues underlying the current controversy are not intricate and in view of clear and binding rulings of the Supreme Court it is hard to misunderstand the dictates of the law as it stands today in relation to judicial appointments.

The merit (or lack thereof) of notifications issued by President Zardari elevating Chief Justice Lahore High Court to the Supreme Court and appointing Justice Mian Saqib Nisar as acting Chief Justice Lahore High Court rests on three related issues: one, the mandated consultation process under Article 177of the Constitution in making judicial appointments; two, the principle of seniority and whether or not it applies to judges being elevated from high courts to the Supreme Court; and three, which institution or office has been endowed with the responsibility to interpret the law and the Constitution.

The first issue has been elucidated by the famous Judges’ case (Al Jihad Trust Case, PLD 1996 SC 324), which is being quoted ad nauseam and out of context by spokespersons and proponents of the ruling regime. This case ruled that in making judicial appointments to the superior judiciary the consultation between the president and the chief justice, under Article 177(1) of the Constitution, must be meaningful and purposive. Meaningful consultation was interpreted to mean that the advice of the chief justice is binding on the government, unless the government has valid reasons for disagreeing with such advice. And such reasons must be recorded in writing and communicated to the chief justice. The recorded reasons for such disagreement would then be justiciable i.e it would be for the Supreme Court to determine whether or not such reasons have merit.

In short, on the issue of appointing judges to the Supreme Court, the chief justice of Pakistan has discretion that is akin to a soft veto. And it is ultimately for the Supreme Court to determine whether the chief justice is exercising such authority and veto in an unreasonable manner. In the present case, the president, on advice of the prime minister, refused to abide by the advice given by the chief justice. The notifications for judicial appointments are not in accordance with the requirements of consultation laid out in Article 177, as interpreted by the Judges’ Case.

They have consequently been suspended by the Supreme Court, in view of its preliminary inquiry, which revealed that such notifications have been issued contrary to the advice of the chief justice. The Supreme Court has fixed the matter for hearing before a five-member bench for February 18th. As any decision of the president in disregard of the advice of the chief justice is justiciable according to the Judges’ Case, the apex court will now determine whether or not the notifications issued by the president were legal.

The second issue (that of seniority) is equally straightforward. The Judges’ Case entrenched the principle that judges’ of the high courts have a legitimate expectancy to be elevated as chief justices of their respective courts in accordance with the seniority list, and the practice of appointing ad hoc judges and acting chief justices in breach of the principle of seniority must be curbed. The Supreme Court further elaborated the principle of seniority in Malik Asad Ali case (PLD 1998 SC 161), when it held the appointment of the Chief Justice of Pakistan must also be in accordance with the principle of seniority.

The issue of seniority once again came before the court in the Supreme Court Bar Association Case (PLD 2002 SC 939). Here the SCBA, Pakistan Lawyers’ Forum and Watan Party had challenged the appointments of three judges of the Lahore High Court who had been elevated to the Supreme Court not in accordance with the seniority principle. A five-member bench of the apex court emphatically dismissed the petitions and ruled that the principles of seniority and legitimate expectancy did not apply to appointment of judges to the Supreme Court, and instead the principles applicable to such appointments were those of ‘suitability and fitness’.

In making its ruling the Supreme Court explained that the Article 177(2)(a) did not contemplate that the senior most high court judges are to be elevated to the Supreme Court. They drew a comparison with Article 180 that lays down the mechanism for appointment of an acting chief justice and explicitly refers to the principle of seniority in making such appointment. Apart from the literal interpretation of the provisions of the Constitution, the Supreme Court also explained that the appointment of a high court judge to the Supreme Court was not a promotion but a new appointment. Thus, it was suitability and fitness for such appointment that would trump any consideration of seniority.

Leaving law aside, it can also be argued from a functional perspective that excelling as a judge of the high court or a judge of the Supreme Court in comparison to being a chief justice is contingent upon different skill-sets. An extraordinary legal mind and dexterous judge might not have comparable administrative skills or the inclination to be a chief justice. Likewise, a judge might attain the right to be the chief justice of a high court by virtue of the seniority principle, but still remain unsuitable for being elevated to the apex court and contribute to binding judicial precedents for the entire country.

As a matter of opinion one can disagree with the decision and policy of the Supreme Court when it refused in 2002 to apply the principle of seniority to judicial appointments to be made to the Supreme Court. One can wonder why Chief Justice Iftikhar Chaudhry exercised his discretion in favour of elevating the second senior-most judge of the Lahore High Court to the Supreme Court instead of the chief justice. But as for the law is concerned, it doesn’t require the chief justice of Pakistan to record reasons in support of the manner in which he exercises discretion, nor it doesn’t apply the principle of seniority in case of elevation of judges from high courts to the Supreme Court, and it does require the government to adhere to the recommendations of the chief justice. This much is unambiguous.

One can logically argue that the present system leaves too much discretion with the chief justice in determining who gets to become the chief justice of a province and who comes to the Supreme Court. That consequently one individual has excessive authority to determine the composition of the Supreme Court and the administrative heads of the high courts, which is unhealthy. But any reform on improving the mechanism for judicial appointments must be accomplished by amending the law and not by defying it. If it can muster the requisite parliamentary support, the government can transform the system of judicial appointment in accordance with the Charter of Democracy or alternatively distribute the power to make such recommendations more widely amongst a panel of senior judges of the Supreme Court.

The third issue is even simpler. Under the Constitution it is the judicature that interprets the meaning of the Constitution and judicial precedents and not the Executive. It is almost comical that despite the existence of the aforesaid binding and unequivocal judicial pronouncements, the Zardari regime and its proponents continue to insist that they are the ones applying the law and the Constitution in letter and spirit. It is thus foolhardy to lock horns with the judiciary over the issue of judicial appointments, when under the scheme of the Constitution it is for the apex court to determine what the Constitution means, what their previous rulings mean and how judges are to be appointed.

This blunder on part of the Zardari-regime is not just about inflated egos, bad advice or a turf war between the judiciary and an executive that has habitually encroached upon judicial domain. This is another misconceived attempt to determine the composition of the court as a means to influence future judicial decisions. And that is what makes the issue of delaying appointment of judges to the high courts and the Supreme Court in accordance with the recommendations of the judicature fundamentally invidious. Such moves militate against the very concept of independence of judiciary and must be resisted by everyone who has a stake in upholding rule of law in Pakistan.