New judges’ case in the making?

17 03 2011

Mirza Shahzad Akbar and Moeen H Cheema
Tuesday, February 02, 2010

The threat of an imminent “clash” of the institutions of the state is the latest rhetorical device employed by the government in its efforts to pressure the Supreme Court. The implication is that the Supreme Court has exceeded its constitutional mandate in the NRO case by laying the groundwork for violating the president’s immunity. In this effort President Zardari and Governor Salmaan Taseer of Punjab are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court.

The president has refused Chief Justice Iftikhar Chaudhry’s recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, commonly known as the Judges’ Case, is being distorted and misquoted in order to justify the executive’s refusal to appoint the judges.

In 1994, President Farooq Leghari acting, on the advice of Prime Minister Benzair Bhutto, appointed 20 judges in the LHC as well as acting chief justices at the LHC and the High Court of Sindh. This appointment of “jiyala” judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this background that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges’ Case in 1996, which was reinforced and explained in Asad Ali’s Case in 1998 and Ghulam Hyder Lakho’s case in 2000.

Article 177 of the Constitution states that: “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 the Judges’ Case the Supreme Court interpreted this provision to mean that the while the president nominally has the power to appoint the chief justice of the Supreme Court he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the president.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts “after consultation” with the chief justice of Pakistan, the governor of the province concerned and the chief justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the governor. Again, it was held that the consultation with the chief justices is binding upon the president. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

However, the issue currently is very different from that taken up by the Supreme Court in the Judges’ Case. Here the president’s men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges’ Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice. But it did not deal with the appointment of new judges to the Supreme Court and did not require the chief justices of the High Courts be elevated as and when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench was constituted to examine the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments.

Explaining the spirit of the Judges’ Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority “is misconceived and travels beyond the parameters indicated in the Judges’ Case and Asad Ali’s Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court.”

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words “the most senior of the other Judges” are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court’s own words, “…the absence of the words ‘most senior’ in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court.”

Another argument which undermines the government’s argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents in terms of the appointments to the Supreme Court, for instance, of Justice G Safdar Shah, Justice Zia Mehmood Mirza, Justice Muhammad Ilyas and Justice Chaudhry Fazal Karim.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issue of seniority, suitability and knowledge of law is an area which is to be judged by the chief justice.

In fairness, this is not the most suitable method in the world of making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Congress if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historically the case, or the chief justice, as has been the situation after the Judges’ Case. The latter is clearly preferable.

If the president and the governor are under the impression that they can stall the appointments of judges indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is “a question of public importance with reference to the enforcement of any of the Fundamental Rights.” Article 199(1)(c) empowers a High Court to “make an order giving such directions to any person or authority, including any government…as may be appropriate for the enforcement of any of the Fundamental Rights.” Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court’s direction.

Mirza Shahzad Akbar is an advocate at the Lahore High Court. Moeen H Cheema is an associate lecturer at the Australian National University

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