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Old Saturday, January 16, 2010
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Post Zardari starts new legal battle with CJ ‘on merit’ By Hamid Mir

ISLAMABAD: President Asif Ali Zardari has decided to confront Chief Justice Iftikhar Muhammad Chaudhry on legal grounds, which interestingly have no weight and have already been rejected by top legal experts and respected retired judges.

President Zardari is not ready to appoint Justice Saqib Nisar as the new judge of the Supreme Court on the recommendation of the Chief Justice of Pakistan and proposes the name of Justice Khawaja Muhammad Sharif to be appointed as an SC judge on “merit”. Justice Khawaja Sharif is the chief justice of the Lahore High Court (LHC). He is also the most senior judge of the LHC but the Chief Justice of Pakistan recommended the name of Justice Saqib Nisar as the new judge of the Supreme Court, who is junior to Justice Khawaja Sharif.

The legal experts of President Asif Ali Zardari have advised him to “send back” the summary of chief justice to him instead of rejecting it. The Ministry of Law and Justice have also advised the president, through the prime minister, that Justice Khawaja Muhammad Sharif should be appointed a judge in the Supreme Court instead of Justice Saqib Nisar in the light of Al Jihad Trust case of 1996.

However, the top legal experts, including former CJP Justice (retd) Saeeduzzaman Siddiqui, Justice (retd) Wajihuddin Ahmad, Akram Sheikh and even the petitioner of the Al Jihad Trust case Wahabul Khairi advocate, in their views have already said that it is the CJP’s discretion to promote any judge of the high court. They say that it is not necessary to appoint the senior-most judge of a high court as a Supreme Court judge. They have agreed that the CJP’s recommendations are in line with the Constitution as well as Al Jihad Trust case.

President Zardari will now ask the Chief Justice of Pakistan to review his opinion in the light of the Al Jihad Trust case, as interpreted by the Law Ministry, and will recommend the name of Justice Khawaja Muhammad Sharif for the new appointment because he is the most senior judge of the LHC.

According to legal circles, Justice Khawaja Muhammad Sharif enjoys excellent working and personal relations with Justice Iftikhar Muhammad Chaudhry. He played a very important role in the movement for the restoration of deposed judges. Justice Saqib Nisar was one of the four judges of the LHC who took a fresh oath in 2008 and they were reappointed in the LHC. Justice Khawaja Sharif was also offered a reappointment by the Zardari regime. He was assured that he will be elevated to the Supreme Court very soon but Khawaja Sharif refused reappointment. According to the legal circles, Justice Iftikhar Chaudhry respects Khawaja Sharif a lot for his courage and he is very much satisfied with his performance also. He thinks that Justice Khawaja Sharif is running the LHC affairs very well despite the shortage of 40 judges and that is why he wants Khawaja Sharif to continue in Lahore as the LHC chief justice.

According to the summary sent by Chief Justice Iftikhar Chaudhry to the President of Pakistan, Justice Saqib Nisar is a very competent and honest judge. Justice Iftikhar Chaudhry also wrote in his summary that he is recommending the name of Justice Saqib Nisar with the consent of Justice Khawaja Sharif.

It is pertinent to mention here that the federal government wants to force the Chief Justice of Pakistan to appoint Justice Khawaja Sharif as judge of the Supreme Court for being the senior most but at the same time the Punjab governor has blocked the names of 24 new judges for the LHC proposed by Khawaja Sharif.

The Punjab governor, who has been recommending ‘Jiyala’ judges and getting them appointed through Dogar, has expressed his “unofficial” displeasure on many names proposed by Justice Khawaja Sharif and said that most of the people in the list of 24 were very active in the lawyers’ movement and they are political activists. The governor forgot that Justice Khawaja Sharif also played a key role in the lawyers’ movement.

If the president considers Justice Khawaja Sharif fit for the appointment as a judge of the Supreme Court, then why his governor is reluctant to accept the names of 24 new judges for the LHC by the same Justice Khawaja Muhammad Sharif?

A very close legal eagle of President Zardari told this scribe: “Yes, we have recommended the name of Justice Sharif instead of Justice Saqib Nisar but it is based on merit, we have introduced merit policy in the appointment of judges and this is the gift of democracy.”

When asked why the Punjab governor is not ready to accept the list of 24 new judges proposed by Justice Sharif, the same legal aide made no comments. These legal eagles have no answer as to where was President Zardari’s so-called merit when he appointed the dubious character Justice Bilal as chief justice of the, now defunct, Islamabad High Court, superseding several senior judges of the LHC, including Justice Saqib Nisar
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