February 14, 2010 Leave a comment
Yesterday, a presidential order was passed to elevate Lahore High Court Justice Saqib Nisar to an apex court Justice. Within four hours of the presidential order, the apex court slammed the presidential order, besides, terming it a serious violation of article 177 of the constitution.
The article 177 of the constitution of Pakistan states: The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.
In a wake of this donnybrook between the lawyers or Judiciary and federal government or Executive, it’s also said that president did consult the Chief Justice Iftikhar Muhammad Chaudhry before the presidential order was passed. Simply following a formality and consulting the Chief Justice of Pakistan within this formality border isn’t a right way. Our constitution doesn’t speak about the further solution lest there’s a dissonance between the CJP and president. So here something called a ‘common sense’ needs to be used that both CJP and president should unanimously agree over the decision of appointing the Judge. One agreeing and other disagreeing isn’t viable specially when Judiciary and Executive are important part of country’s edifice and their tussle would surely create more problems in an already troubled country.
Hence, it’d be letter-perfect to say that the presidential order by Zardari was an overhasty act which lead to a quick brouhaha in the country. Had Zardari consulted the CJP in order to deduce a unanimous decision, the today’s melee amongst the custodian of country’s edifice would have not happened.
Another controversy is the Al-Jihad Trust Case. Former Chief Justice of Pakistan Justice Saeeduzzaman Siddiqui has also said that at no point the Al-Jihad Trust Case judgment binds the Chief Justice to recommend the Chief Justice of a high court to be elevated as judge of the Supreme Court and the Chief Justice could recommend number two or even number three senior most judge for this elevation.
Confusion in this regard has been created because of intermixing of the Al-Jihad Trust Case with Malik Asad Case by some people. In Malik Asad case, Justice Saeeduzzaman Siddiqui himself gave the verdict in 1997 that senior most judge of a high court will become the Chief Justice of that high court and senior most Judge of the Supreme Court will become the Chief Justice of Pakistan. What needed to be understood is that the seniority principle is not applied in the issue of elevation of High Court Judge to the Supreme Court.
This means that if Chief Justice recommends Justice Saqib Nisar, who is second in seniority, for elevation to the Supreme Court and ignores the Chief Justice of the same High Court, neither the Constitution nor the Al-Jihad Trust case bars him from doing so.
To release the tension in the country that doubles every second day, president of Pakistan needs to act prudently and adopt a strategy of balancing things in order to restore the harmony. If anything, challenging the apex court is as equal to showing the red reg to the bull. This is right to say: Once the Supreme Court gives a judgment after scrutinizing the constitution profoundly, it’s not open to any authority to defy or ignore it. While there is room for criticism of the judgments, there is no room for defiance.