Adil Najam
The legal complexities of the tussle between the President and the Chief Justice of the Supreme Court remain messy and unclear, but one thing is very very clear: the confrontation between President Asif Ali Zardari and Chief Justice Iftikhar Chaudhry has, once again, brought the system to the very brink of collapse.
Not since Gen. Musharraf’s 2007 imposition of emergency and removal of the Superior Judiciary has the country been in as destabilizing an institutional crisis as it is today. And that is saying something, given that the period in between has essentially been one long sequence of one crisis following another!
While legal experts busy themselves with trying to untangle the constitutional mess and to figure out who did what wrong when and who has what rights how, one is struck with the sinking feeling that this whole constitutional tussle between Mr. Zardari and Mr. Chaudhry has taken on a rather personal touch. One fears that both are now caught up in a most dangerous game of ‘chicken’; waiting for the other side to blink first. The problem, in any game of ‘chicken’, is that if neither side blinks you are left with a huge collision and a lot of splashed blood, often of those who are caught in the middle. In this case, those caught in the middle are the people of Pakistan and, indeed, the political future of this already much-tortured polity.
Before going into the details of what has happened, when, and how, let me share what I think is the most sensible commentary on this whole sordid situation that I have seen, in today’s editorial in Dawn:
At this moment, all sides need to step back, take a deep breath and think very carefully about their next moves. The backdrop to the latest moves is what is perceived to be the escalating tension between the executive and the judiciary since the Supreme Court’s judgment in the NRO case. Historically, clashes between these two institutions have led to disastrous consequences for democracy and constitutional continuity in the country. The fate of a high court judge here or a retired Supreme Court judge there should not hold the country’s political future hostage. Common sense must prevail.
The earlier part of the same editorial in Dawn does a good job of summarizing what has happened, and what it means:
Yesterday was yet another day of high drama in Pakistani politics. It began with the Supreme Court constituting a five-member bench to look into the issue of who has what powers when it comes to appointing judges to the superior judiciary. The hearings were set to begin on Feb 18. Then the presidency made its move: honing in on one facet of the row, it announced that the Lahore High Court Chief Justice Khwaja Sharif had been elevated to the Supreme Court and his replacement, though only in an acting capacity, was to be the judge next on the seniority list, Justice Saqib Nisar.
This was the opposite of what Chief Justice Iftikhar Chaudhry had earlier recommended to the president: that Justice Saqib Nisar be elevated to the Supreme Court and Justice Khwaja Sharif be retained as the chief justice of the LHC.
The Supreme Court, though, was not to be deterred: an extraordinary, late-evening bench of the SC suspended the president’s order. It’s not clear what options the president has now and at the time of writing this editorial no further counter-moves have been announced.
What is the country to make of this? The goings-on in Islamabad yesterday defy easy explanation. The dispute is no longer about whether anyone is or isn’t a judge of the superior judiciary but about who sits on which court of the superior judiciary.
Neither is it obvious what Chief Justice Iftikhar Chaudhry hopes to gain by setting aside the seniority principle and appointing the less-senior Justice Saqib Nisar to the Supreme Court instead of LHC CJ Khwaja Sharif nor is it obvious why the executive is unwilling to accept Justice Khwaja Sharif continuing as the LHC CJ and wants Justice Saqib Nisar in that job instead.
So the country is confronted with a highly arcane and technical dispute over constitutional prerogatives between the executive and the head of the superior judiciary but a dispute which nevertheless carries the potential for having seriously destabilising effects on the polity.
For those seeking more detail, the main story in Dawn provides all you crave for. Some highlights:
The ongoing controversy between the government and Chief Justice Iftikhar Mohammad Chaudhry over the choice of judges to fill in vacant positions in the superior courts took an ominous turn on Saturday evening after President Asif Zardari decided to elevate Justice Khawaja Mohammad Sharif, the chief justice of the Lahore High Court, to the Supreme Court and appoint Justice Mian Saqib Nisar as acting chief justice in his place. But more drama followed. Within two hours of the presidential order, Chief Justice Iftikhar Chaudhry took a suo motu notice of the move, and well past the working hours, constituted a three-judge special bench. The bench handed down a short order to “suspend†the official notification…
…As tension gripped Islamabad and speculations of all kinds swirled, the legal fraternity appeared divided both on the president’s order as well as on the way its was suspended. At the same time consultations started in the President House, the opposition’s camp, and between the lawyers’ leaders. The president’s late-evening decision followed the formation of a five-member Supreme Court bench to take up petitions regarding the delay in the appointment of superior court judges.
Chief Justice Iftikhar Chaudhry had reportedly recommended appointing the recently retired Justice Ramday as an ad hoc judge of the Supreme Court, and to elevate Justice Saqib Nisar, the second most senior judge in the Lahore High Court, to the apex court. However, the president’s spokesman, Farhatullah Babar, told DawnNews that the chief justice was consulted before the issuance of the notifications. The standoff evoked the tumultuous happenings of 2007 in the wake of Justice Iftikhar Chaudhry’s ‘dismissal’ by Gen Pervez Musharraf. According to insiders, the president took the initiative after consultations with his trusted legal aides, Senate Chairman Farooq Naek, Law Minister Babar Awan and former attorney general Sardar Latif Khosa…
…Soon after the issuance of notification the judges of the provincial high court gathered at the residence of the Lahore High Court CJ for discussions and later Justice Sharif as well as Justice Nisar indicated to the media that they might not adhere to the notifications by staying away from taking oath.
…The rapidly unfolding events throughout Saturday evening also created despondency, with former SCBA president Ali Ahmed Kurd, the engine behind the two years long lawyers movement. Kurd expressed disappointment over the events and deplored that it appeared as Justice Khawaja had become the most important individual in the country. “We the people of the Pakistan want to see constitution, democracy, parliament as well as the judiciary flourished in the country,†he said adding the seniority principle settled in the 1996 Al-Jihad Trust should be honoured at all cost.
Eminent constitutional expert Fakhruddin G Ibrahim was also of the view that it would always be good that senior judge must come to the Supreme Court asking what was wrong if the senior judge was elevated. “Do not leave such matters on discretion but always respect the seniority principle,†he said. Advocate Athar Minallah, who acted as the spokesperson of the chief justice during the two years long lawyers struggle also expressed his frustration and said that the development was infact a gift to the non democratic forces and to those who were sitting on the fence and would like to see confrontation between state institutions that could only cause irreparable loss to the country. Time has come when the members of the parliament, he said, must immediately act to ensure that no confrontation should take place and that the constitution should prevail.
…Keeping in view the lego-constitutional position, Prime Minister Yousuf Raza Gillani has advised President of Pakistan Asif Ali Zardari to request Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry to reconsider his recommendation of December 19, 2009 and had advised the president that in view of the legal position and the guidelines laid down in the Al Jehad Trust case PLD 1996 SC 324, primacy should always be given to the senior most judges in matters relating to elevation of high court judge in the Supreme Court unless found to be unsuitable by the Chief Justice of Pakistan for such elevation.
What’s missing from all news articles and talk show programmes on this subject is a clear, unbiased legal opinion. Ignoring who is involved, and who has done what, what is the proper legal procedure according to the constitution? Unfortunately we always seem to decide right and wrong based on the actors and not the actions.
The CJ has done nothing to show that he has an unbiased approach to all political parties. Certainly Zardari et al have numerous corruption cases which need to be tried, but who among us is naive enough to think that the Sharif brothers do not have equally dirty hands? If he does not pursue action against them, then this golden opportunity of putting our house in order will again be wasted, and people will lose trust in every single arm of government.
Some more comments from the ATP Facebook Page:
– “It’s Zardari causing all the trouble and chaos, not Ifthikhar sahab. In fact, the honorable Chief justice is doing what is right according to law and constitution. Insaaf Zindabad !”
– “Actually in this case the CJ is over–stepping. all legal experts agree that the right thing is to make the senior most HC judge the SC judge”
– “It`s not the legal experts. Its the constitution that says that CJ`s recommendation is binding on president. Period. Now this pathetic bunch of theives will again start emotional blackmail of this nation. We Pakistanis are in fact dead worshippers. They`ll name Benazir, her dead father and will make noise about being a victim and being a sindhi. Constitutionally, CJ`s Recoomendation was binding on Zardari. That`s it. The bunch of theives just wants to make sure that the Govt does not act on the NRO ruling.”
– “Ridiculously people here commented are mostly out of Pakistan and dont know whats really behind the curtains ! Zardari was playing hide and seek for 70+ judges posts in all provinces , blocking thier summary given by CJP and all provincial CJs , Dr.Babr Awan himself secretly meeting with Justice Saqib Nisar a month ago in his house convincing him, Governor Punjab playing games and seriously affecting whole judicial system and millions of pending cases due to 70+ vacant seats for 3 months ,probably,wanting typical ‘Jiyalas’ to capture it like that thier times old method in Steel Mill,Railway,PIA etc from 1988-2010. CJP took exacyly right decison telling all crooks that “NRO Revenge” would not be on cost of Pakistan Judicial System !”
– “What dirty game is started by Zardari yesterday.”
– “just zardari is the reason of that all????”
– “They all have vested intrest and nobody cares for Pakistan”
– “not only zardari but gillani as well. ZARLANI responsible”
– “proud of the stand taken by chief justice!”
– “i agree with all my frandz as above”
– “Zardari needs better advisors….”
– “zardari needs good persons and i think zardare have all lotaz”
– “The point now is that for how long will the nation stand PPP government (especially Zardari) committing such stupidities? Gillani’s impotence is becoming pronounced day by day and his essential in-action to remove this goon from the Presidency! Soon, they will ALL pay and HEAVILY so!”
– “aray sab log apni apni dekhrhay han, Chief shab ko bhi apnay judges nazar ayee. hukomat jo awam say rooti kapra aur makan chein rahi hai us per koi notice nahi ataa. us per koi action q nahi letaa, apni apni seeyasat per poray mulk main dharnay bhi hotay han, jalsay bhi hotay han but pochnay wala koi nahi, is awaam ka.. jab petriol per 6.42 Rs. Barhye gaye thay to kise nay bhi us per notice nahi lia na koi joluss nikalaa , Allah hi Hafiz hay Awam ka..”
– “State is like a building & judiciary is like its plinth(Base), if base is weak what will happen to the building”
– “this is a game of upper level and we shall never be affected directly from it…..the are fighting for themselves not for Us.neither CJ nor President”
– “Yes, this is a game of upper level and they r fighting for themselves not for us. But we shall DEFINITELY BE AFFECTED from it.”
– “I can predict that if they dont behave, tables will be turned on all ie Zdi, NS and CJ”
@ Fatima
Khwaja Sharif was appointed as Advocate General Punjab during the Shahbaz Sharif government in 1997. Its like saying that Latif Khosa or Babar Awan will not be biased if they are appointed as judges. Advocate General is appointed by government to present its point of you to the judiciary.
Who is misleading people? These are facts, go read his book.
And this is how it works all over the world, people elect Parliament and Executive, parliament/executive appoints judiciary and judiciary keeps them both in check as per the laws made. If judges start appointing themselves, there would only be stagnation as a corrupt judge will appoint a person who will hide his corruption as his successor. There will be no accountability. If parliament does wrong people can always vote them out.
And that is indeed my proposal, DG ISI should be appointed by parliament and should be a civilian but that is another debate. By the way, Transparency International says Army and Judiciary are the most corrupt institutions in Pakistan. A more recent survey by American Business Council also has put the Generals and Judges far ahead of politicians. Again facts. It is only these corrupt looters that Pakistan has been able to get India to talk about Balochistan and Water issues. Something that army rule miserably failed to do.
@ Fatima
And who are you? A sympathizer of CJ and his men and PML N? You started mentioning corruption cases and other stuff about Zardari government while my focus was on larger things. I did not comment by mere reading the editorial of the newspaper you mentioned. I pointed out the inherent flaw in this policy. Al-jihad trust case is a mere decision and parliament can overrule it or any other SC decision. What I am saying is that this whole appointment of judges is a flawed concept. Make it transparent and free of the personal likes/dislikes of CJ or president. Follow the US and let the parliament elect SC judges. PM should recommend three to four names and then legislature should grill them to the bone before appointing any new SC judge. Oh and open all the proceedings to media. Pakistani media treats judges as holy cows.
And as correctly pointed out; this is not the entire discourse. There is this minor issue of empty benches as the vacancies are being held up by the executive.
Is this an attempt to pack the courts?
Are the two connected?
Well, not by straight line, but by mere fact that there is an appearance of an attempt to pack the courts. The two are joined at the hip.
Then there is a history of packing the courts by the executive since the days of Liaqat. Bar none.
But those were the yesterdays. Judiciary was weak. Though, still is not strong enough, the judiciary is presently resistant. And we all know, in Pakistan, the executive has the history of thinking that they are above the law.
The 1996 Trust case was rendered by a weak judiciary to create a minor protection against another executive who wanted to run judiciary like a fiddle. The automatic elevation of a high court judge to supreme court based on seniority was a bad decision but looked good in bad times. It created a stability at the SC whereby it could not be packed by a rouge executive. And as later events proved, rouge was he. Nawaz Sharif has the unique distinction in the history of this country to set his goons on the SC. Such were the conditions that a bad decision looked so good.
Amazingly, Sultan Musharraf has the unique distinction of breaking constition over judiciary. I do not think he can even find one example anywhere else, where constitutions are made mockery of, that lowers the bar the way he did.
So, the immediate past is not that stellar in favor of rouge executives.
But there is more to the postion of the Chief Justice than being a judge. A great judge may not turn out to be a good administrator. And vice versa. There is much more to be a chief.
And then the courts do need stability at the helm. The Trust decision had chiefs of high courts moving up after a few months because of a vacancy on the supreme court. This is no way to run the judicial branch. I am not sure if any or many of the chiefs at the lower courts would be happy to keep the seat warm as a junior in a senior court, especially, if they have no chance of being chief in the senior court. You see, there is an issue of automatic retirement as well.
Myself, I am prepared to err in favor of bad judicial decisions for I have yet to see a good judicial decision by the long line of executives in Pakistan. They do not have the history on their backs. This is why, I find the bad Trust decision as a good decision of its times.
So, the two positions are at odds with each other. The need of stability of the court system throgh able administrators and how not to let the rouge executive pack the courts.
A balance needs to be struck.
A process of confirmation by parliament is not all that clean, though it will give some airing on the appointments, because of the parlimentary nature of government.
Another can be the that the chiefs of courts get the privilege to stay as chief for at least two years. No judge should be appointed as the chief of the court if their retirement is up in less than two years. No chief can be elevated if does not want the elevation. He gets to serve his term out. Similar rules at the senior court.
Another can be a process of recomendations of 25% of appointments by executive of the province, 25% by the chief of lower courts, 25% by provincial assembly, 25% by the chief of the supreme court is a good balance. No one party gets to pack the court. This can become 25% by executive, 25% by parliament and 50% at the SC.
No one gets to pack the courts.
I like the last proposal. No one wins and no one looses.
I am sure others can come up with better ideas. A new way needs to be found.
In matter of justice, when there is no clear line and everyone walks away unhappy; it is a good decision.
I am glad this is taking its course. Ignorant media and their extensions are playing it as a personal battle. It may be. The ignorant media who plays either dumb or serves as press release of one side or another does not serve the Pakistani people.
But as long as both sides present the arguments, Pakistani judicial process can move forward and in the end, people of Pakistan will be better served.
History is better judge and people let it be known.
In short, courts should not be packed. And Trust decison is a bad decision.
And we cannot go back to yesterday.