On the eve of 13th February, when the citizens of the Land of the pure were planning their Valentine’s Day celebrations, and as the hardliners were contemplating how to disrupt couples displaying their affection in public, the unthinkable folly of all times occurred. Once again the Presidency committed itself to an idiocy which took our minds to the not-that-far past of 3rd November, 2007. The President of Pakistan issued a notification appointing the Chief Justice of Lahore High Court, Justice Khawaja Sharif, as puisne judge of the Supreme Court of Pakistan and the second senior most judge, Justice Saqib Nisar, as Chief Justice of Lahore High Court. A three members’ bench of the Supreme Court of Pakistan immediately took suo moto notice of the matter, suspended the executive order of the president and ordered the judges to continue working in their previous capacities. Further to the humiliation of the presidential camp, Justice Saqib Nisar also showed his allegiance to the Constitution of Pakistan. He conveyed to Chief Justice Chaudry Muhammad Iftikhar that he would not accept any such appointment that does not have the blessing of the chief justice as required by the Constitution and the established case law of the superior judiciary on this issue.
After the executive order of the president, I went back to the grund law i.e. the Constitution and read the relevant provisions time and again to understand the logic of this executive order, which by no means is a constitutional act of president. Article 177 (1) clearly states that ‘…and each of the other judges (of the Supreme Court) shall be appointed by the President after consultation with the Chief Justice’. And the effect of the word consultation and the role of the Chief Justice of Pakistan in appointment of judges were exhaustively deliberated upon in the case of the Supreme Court Bar Association through its President Hamid Khan v. The Federation of Pakistan (PLD 2002 SC 939) and in the landmark cases of Malik Asad Ali vs The Federation of Pakistan (PLD 1998 SC 161), the Al-jihad trust case (PLD 1996 SC 324) and the case of Ghulam Hyder Lakho (PLD 2000 SC 179). There is not an iota of doubt in any sane legal mind in this country that the President cannot ignore the recommendations of the Chief Justice of Pakistan in appointment of judges and especially in the Supreme Court. Any deviation from the ‘consultation’ of the Chief Justice is only on the character, conduct or antecedent of a recommended candidate.
Having said all this, the executive order of 13th February 2010 did not make any sense as the Presidential camp very well know that their case, like the case of NRO, has no merits and will fall in disarray before the legal scrutiny of the Supreme Court. Then why go through the hassle of ruining government’s reputation and being a villain in the public eye? Then I thought of the three so-called legal stooges who are the President’s top advisors and were allegedly present at the time of this order, and the aim of this folly became clear to me. The repute, background and education of these three stooges is better known to all. They drive their lessons of politics from Machiavelli in comparison to Plato or Aristotle. And not to lose the pun here, Machiavelli wrote his famous work, ‘The Prince’ while being in prison and some of his disciples here share some similarities with him in that sense as well. Drawing on the Machiavellian reference, it also became clear that the fundamental principle here is based upon the notion that if you have nothing more to lose, then entangle your opponent in a filthy brawl. You might not win but your opponent might lose his strength.
It is undoubtedly clear that the President is not at his zenith. He stands more maligned today than he was while in prison for corruption, as then he at least had the defence of the government’s bias against him. Recently, the shameless NRO was struck down by the Supreme Court, declaring it unconstitutional and un-Islamic. His Swiss cases were ordered to be reopened and looted money to be brought back to Pakistan. Further petitions have been filed challenging the presidential immunity and eligibility of his office. Stories of his government’s uninhibited corruption are being narrated at every corner of the country. The popularity of this government popularity can be judged by the fact that the interior minister is threatening to arrest citizens for any sms exchange about the President or prime minister. Government has failed to command respect and has reverted to gaining it by imposing ridiculous laws, the true narrative of their approval. Needless to say that it remind me of Habib Jalib’s famous poem, Larkanay chalo ya thanay chalo. In all this, the recent onslaught on the judiciary and the Chief Justice is a two prong strategy adopted by the presidency. First to malign the judiciary by entangling them into a time-wasting fight and secondly to divide the bar by politicizing the appointment issue by gaining the left of the bar on ideological grounds. This clash of institutions orchestrated by the presidential camp is another effort to take people’s mind off the real problems of food, water and power shortage, lack of law and order, growing and uncontrollable menace of terrorism and relentless corruption of higher government officials/ministers and all this accumulating into lack of good governance.