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Old Sunday, February 14, 2010
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Exclamation President overrides CJ’s recommendation on judges’ elevation; SC suspends Zardari’s

ISLAMABAD: Saturday evening witnessed the zenith of the weeks long tense build-up between the Presidency and the Supreme Court over the issue of elevation of Lahore High Court chief justice to the Supreme Court and the appointment of his successor. The president first issued orders to this effect only to receive a stinging rebuke within hours from the Supreme Court which said ‘no thank you Mr president’ and suspended his freshly issued notifications.

The Supreme Court suspended the presidential order regarding appointment of Chief Justice Lahore High Court Khwaja Sharif as Judge Supreme Court and Justice Saqib Nisar as acting Chief Justice Lahore High Court declaring it a clear violation of Article 177 of the Constitution.

President Asif Ali Zardari through two different notifications had appointed Chief Justice Lahore High Court Khwaja Sharif as Judge Supreme Court and senior Judge LHC Justice Saqib Nisar as acting Chief Justice of the Lahore High Court.

Chief Justice Iftikhar Muhammad Chaudhry, however, took suo moto notice of the government notification immediately after its issuance and formed a three-member bench of the apex court for hearing the case.

The three-member bench headed by Justice Mian Shakiruallh Jan and comprising Justice Raja Fayyaz Ahmed and Justice Jawad S Khawaja while hearing the matter at 9pm suspended the two notifications of the government declaring it clear violation of Article 177 of the Constitution.

“Notification of Justice Khwaja Sharif as Judge Supreme Court has been suspended and he will continue as Chief Justice of Lahore High Court,” the court ruled after sending notice to Attorney General for Pakistan Anwar Mansoor Khan, secretary Law as well as registrar Lahore High Court for Feb 18.

The court also suspended the 2nd notification of the government regarding the appointment of Justice Saqib Nisar as acting Chief Justice of Lahore High Court and ruled that Justice Saqib will continue as senior judge of the Lahore High Court.

The court also restrained the governor Punjab, who was scheduled today (Sunday) to administer oath to Justice Saqib Nisar as acting Chief Justice Lahore High Court.

“So no step will be taken by any functionaries to administer oath to Justice Saqib Nisar as acting Chief Justice of Lahore High Court,” the court ruled.

Additional Registrar of the Supreme Court Sajid Mahmood Qazi placed on record of the court that there was no such recommendation of the chief justice of Pakistan for the appointment of Justice Khwaja Sharif as judge of the Supreme Court.

The court also issued notice to additional secretary Law and other officials under whose domain the notifications of appointment of judges were issued and directed them to appear before the court on Feb 18, wherein hearing into the case of delay in appointment of judges will be held.

A five-member larger bench of the apex court has already been constituted to hear the petitions filed against the government for delay in the appointment of judges in the superior courts.

The court had issued notices to Federal Government, attorney general for Pakistan and four provincial advocate generals in the case.

Earlier the court summoned Attorney General Anwar Mansoor Khan. However he was not available as he had flown to Karachi. The court through additional registrar of the Supreme Court intimated him on phone. However, he could not appear before the court and informed the court that the last available flight from Karachi took off at 7pm and he was unable to appear before the court.

Soon after Chief Justice Iftikhar Muhammad Chaudhry took suo moto notice of the presidential order, a large number of people thronged the Supreme Court building.

After the hearing of the suo moto case, people gathered outside the Supreme Court and chanted slogans in favour of the chief justice and supremacy of the constitution.

The incumbent PPP government on Saturday launched an open war with the county’s judiciary after setting aside the recommendations of Chief Justice Iftikhar Muhammad Chaudhry to President Asif Ali Zardari for appointment of Justice Saqib Nisar, a judge of Lahore High Court, as judge of the Supreme Court.

The president in violation of Article 177 of the Constitution, set aside the recommendation of the chief justice and appointed Justice Khwaja Muhammad Sharif, Chief Justice LHC as judge of the Supreme Court and appointed Justice Saqib Nisar as acting Chief Justice of Lahore High Court.

According to Article 260 of the Constitution, the president is bound to accept the recommendation of the chief justice for appointment of judges in the superior judiciary.

Legal circles believe that the government has waged an open war against the judiciary, which is not a good omen in the country’s prevailing situation.

“It’s a clear cut violation of the constitution and law as the president is bound to accept the recommendations of chief justice of Pakistan in the appointment of judges in the superior courts,” said Muhammad Ikram Chaudhry, senior advocate of the Supreme Court.

He said that by passing the recommendation of the chief justice and appointing Justice Khwaja Sharif as judge of the Supreme Court is clear cut violation of the constitution which is not a good sign and the president has waged an open war with the judiciary as well as creating rift between the institutions of the country.

It is for the first time in the history of Pakistan that a senior judge has been appointed as acting chief justice.

Earlier, there has been some tension between the government and the judiciary over the issue of elevating Justice Khwaja Sharif as judge of the Supreme Court.

Meanwhile, Chief Justice Lahore High Court Justice Khwaja Sharif and Justice Saqib Nisar, the senior most LHC judge, Saturday refused to accept the decision of the government.

Talking to Geo TV, Justice Saqib Nisar said he was invited to take oath as acting CJ of LHC on Sunday by Governor Salman Taseer, but he refused the invitation by saying: “The orders of Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry are binding for me and I will not take any step against the recommendation or instruction of the CJP.”

TEXT OF SC SHORT ORDER

“IN THE SUPREME COURT OF PAKISTAN (ORIGINAL JURISDICTION) PRESENT: Mr Justice Mian Shakirullah Jan Mr Justice Raja Fayyaz Ahmed Mr Justice Jawwad S Khawaja Constitution Petitions No 2, 3 & 4 of 2010

Nadeem Ahmed Advocate (in Const P.2/2010)

Khadim Nadeem Malik ....(in Const P.3/2010) Watan Party,etc. (in Const.P.4/2010) ....Petitioner (s) Versus Federation of Pakistan etc.

Respondents in all petitions for the petitioner(s): Nemo for the respondents: Nemo on court’s call: Qazi Sajid Mehmood, Additional Registrar Date of hearing: 13.02.2010

“ORDER: Today two notifications, one relating to the appointment of Mr Justice Khawaja Muhammad Sharif, Chief Justice of the Lahore High Court as a Judge of the Supreme Court and the other with regard to the appointment of Mr Justice Mian Saqib Nisar, Senior Puisne Judge of the Lahore High Court as Acting Chief Justice of that Court have been issued by the Government of Pakistan, Law, Justice and Parliamentary Affairs Division under the signatures of Malik Hakam Khan, Draftsman/Additional Secretary. The said notifications read as under: - “No.F.2(1)/2010-A.II.- In exercise of the powers conferred by Article 177 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to appoint Mr Justice Khawaja Muhammad Sharif, Chief Justice of Lahore High Court as Judge of the Supreme Court of Pakistan with immediate effect.

No.F.1(2)/2009-A.II.- In exercise of the powers conferred by Article 196 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to appoint Mr Justice Mian Saqib Nisar, Judge, Lahore High Court as Acting Chief Justice of the said High Court with effect from the date of the notification of the appointment of Mr Justice Khawaja Muhammad Sharif, Chief Justice of Lahore High Court as Judge of the Supreme Court of Pakistan.”

2. 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. Since it was an important matter, the Additional Registrar was directed to issue notice to the learned Attorney General including through telephone and we retired for a while until we were informed about the service of the notice upon the learned Attorney General. After some time we were informed by the Court Associate that the Additional Registrar, after informing the learned Attorney General through telephone about the hearing of the case had come to the Court, so we re-assembled.

3. The Additional Registrar, in his report stated that he informed the learned Attorney General for Pakistan through telephone who told him (Additional Registrar) that he was in Karachi at the moment and that the last scheduled flight from Karachi to Islamabad had already departed at 70 p.m., he expressed his inability to appear before the Court. Since the matter was of urgent nature, as stated earlier, steps would be required to be taken by the Governor of the Punjab to administer oath to Mr Justice Mian Saqib Nisar as Acting Chief Justice of the Lahore High Court by tomorrow morning, hearing could not be postponed without passing an appropriate interim order.

4. Article 177 of the Constitution of Islamic Republic of Pakistan provides that a Judge of the Supreme Court shall be appointed by the President after consultation with the Chief Justice of Pakistan. The Additional Registrar stated that according to the record of this Court no consultation had taken place by the President with the Hon’ble Chief Justice of Pakistan regarding the appointment of Mr Justice Khawaja Muhammad Sharif, Chief Justice of the Lahore High Court as Judge of the Supreme Court. In the light of the statement of Additional Registrar and also the note submitted by him and placed on the file of Constitution Petitions No. 2, 3 and 4 of 2010 relating to the same/almost the same matter, already pending before this Court in which notices had been issued and a larger Bench constituted for 18-2-2010, the notification of the appointment of Mr Justice Khawaja Muhammad Sharif as a Judge of the Supreme Court, prima facie, appears to have been issued in violation of the provisions of the Constitution, particularly, Article 177, hence the same is suspended subject to notice to the Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs Division, the Attorney General for Pakistan and the learned Advocate General Punjab. Mr Justice Khawaja Muhammad Sharif shall continue to perform his duties as Chief Justice of the Lahore High Court until further orders of this Court. No steps to administer oath to him will be taken.

5. In view of the suspension of notification No.F.2(1)2010-A.II. dated 13.2.2010 regarding the appointment of Mr Justice Khawaja Muhammad Sharif as a Judge of the Supreme Court, the office of Chief Justice of Lahore High Court will not fall vacant, therefore, the second notification No.F.1(2)/2009-A.II of even date regarding the appointment of Mr Justice Mian Saqib Nisar as Acting Chief Justice of the Lahore High Court cannot be acted upon. Therefore, the same too is suspended. In consequence, Mr Justice Mian Saqib Nisar will also continue to perform his duties as a Judge of the Lahore High Court until further orders. Resultantly, no steps including administering of oath to Mr Justice Mian Saqib Nisar as Acting Chief Justice of Lahore High Court shall be taken by the concerned functionaries.

6. The Draftsman/Additional Secretary, Ministry of Law, Justice and Parliamentary Affairs, under whose signatures the aforesaid notifications have been issued, is directed to appear in Court on 18.02.2010, the date already fixed in the titled cases. The Registrar of the Lahore High Court shall also appear on the said date.”
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