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.
Dear Adil Najam and Banjara286, I am a lawyer myself and would like to explain the position. Adil your article and Banjara your comments are based on a wrong premise that either side could be correct in this case.
As per the existing law (i.e. the constitution and previous relevant interpretative judgements) judges to superior judiciary are appointed/elevated by President on the advice of the Chief Justice. This simple rule requires the following explanations. I am including the office of prime minister in this debate because in the case of Justice Saqib and Justice Sharif the notifications were issued on his advice.
First, it is not for the president or prime minister, but the chief justice, to choose people for appointment as judges. The reason behind this is that the Chief Justice of Pakistan is more capable of recommending such appointments/ elevations as compared to these two offices. In the recent past no appointments/ elevations have been forced by presidency or the office of the prime minister. Keeping this in mind, in this case it was quite extra ordinary on the part of these two offices to issue notifications for elevation and appointment of Mr. Justice Khawaja Sharif and Mr. Justice Saqib Nisar.
Now coming to the other side, it is in no way extra ordinary for the court to disagree on the issue of appointments and elevations. Why? Just think for a moment that if you allow presidency and prime minister’s office to have an absolute power to take these decisions you will end up having a judiciary which will be in large part politicized. For instance, all the appointments and elevations made after 2008 elections were highly politicised. Almost all the lawyers who were elevated belonged to People’s Lawyers Forum and most of them were generally believed to be highly incompetent. For instance, Ahsan Bhoon (who was virtually being rewarded for stabbing the lawyers movement in the back. I am am witness to his reluctance for running the show during the lawyers movement) and Abid Saqi (who can hardly be tagged as a good lawyer). You may ask any lawyer who is not involved in partisan politics of the bar about those appointments and elevations. On the other hand a chief justice, who has to retire in due course of time, cannot possibly gain a huge personal advantage from making appointments of his choice. It is for this reason, that CJ’s advise has to be binding for appointments and elevations to superior judiciary.
Coming to the much talked about Al-Jihad Trust Case, it has been repeatedly said by presidency spokesmen that the principle settled in this case has been followed by issuing these notifications. Please look into that case, NOWHERE IN THAT CASE IT HAS BEEN HELD BY THE COURT THAT THE SENIOR MOST JUDGES OF THE HIGH COURTS SHOULD ALWAYS BE ELEVATED TO THE SUPREME COURT. Al Jihad Trust case settled the principle of appointment of the Chief Justice of Pakistan only.
Coming to the status of ‘Advice’ of Chief Justice on the issue of appointments and elevations. Please understand that, under the law, it is NOT OPTIONAL for the executive to follow such ‘advice’. It has the same status as that of Prime Minister’s advice to the President on issues of governance like imposing emergency etc.
The simple litmus test in this case is, whose advice do you think should prevail for deciding about a person’s ability to decide legal propositions, President’s or the Chief Justice’s of Pakistan? If we choose the former, we are deciding to go back to Zia’s times when the presidency was supposed to prevail over all other institutions. If you choose the latter, that is how a republic is supposed to function.
Now lets PRESUME for a moment that Chief Justice’s reservations on the acts of President/Prime Minister are absolutely unfounded. Even then, in principle would you actually like to shift the power of making these appointments to those offices which are, due to very nature of their process of election, based on partisan politics. The chief justices are now appointed on the principle settled in Al-Jihad Trust Case and this, almost entirely, rules out the possibility of appointing a chief justice on a partisan basis by a government. Apparently, the chief justice is a better choice for deciding about appointments in superior judiciary.
Lastly, it is also out of place to comment on or draw comparisons between Mr. Zardari and Justice Chaudary alleging corruption or past conduct. This issue relates ONLY to ‘balance of power’ between various institutions of the republic. Whether or not Mr. Zardari is a corruptor of the highest order or Justice Chaudary is the most vindictive person on the face of this earth, hardly matters. It is the principle of balance of power in this polity which is to be settled for times to come. For Mr. Zardari, no matter what we may allege as general public against him, he has been elected in accordance with the procedure laid down in the constitution. He can only be removed through impeachment. Not mud slinging. Whether or not he was eligible to become president is a separate question of law which again may be decided in any judicial proceedings. Justice Chaudary is, as per the law, the Chief Justice of Pakistan until 2013. Our disapproval of his actions hardly carry any weight. He too can be removed only through the Supreme Judicial Council.
What is probably needed is that the institution of Presidency needs to learn that its powers are subject to huge limitations. Presidency represents the federation, does not run it, and therefore it is bound to follow the advice wherever the constitution suggests it. The Prime Minister needs to understand that he is elected as a result of partisan politics and, compared with the chief justice, he is probably less capable of judging a person’s ability to become an adjudicator. Also, as per the law the chief justice’s advice is to be followed.
Let me end on an anecdote. Once Ms. Bhutto, while talking to President Leghari said ‘I can appoint anyone as chief justice, I can appoint Jehangir Badar as the chief justice of Pakistan if I want’, ‘can you?’ asked Leghari. ‘Yes’ Ms. Bhutto replied ‘since he is part of my government’, Leghari again asked ‘Is he a part of your government? Are you Louis the XIV’ referring to a 17th-18th Century European monarch.
this crisis is clearly of cjp’s creation. one may agree or disagree with the govt. decision but there is nothing wrong with it, either constitutionally or legally . it may be news to some, but the entire legal community is not with the supreme court and the cjp on this issue.
if appointments and promotions to the supreme court are indeed the prerogative of the cjp, let the constituion be formally amended to clearly state this; and let pml-n support this amendment, or else all their indignant hollering is merely a sham. if they don’t, and i strongly suspect that they won’t because it will come to bite them as well in future, then they should stop playing politics with this issue.
if the cjp has any honor, he should resign, wait out his two years, and enter politics so he has a chance to form the govt. in future.
justices sharif and saqib nisar of the lahore high court should be sent home for dissenting with the govt. decision on this issue.
Is it not a paradox of the first water: A man charged with mega- corruption and what not making appointments of his choice to the superior courts?
Zardari has just written his own dismissal warrant. By the end of next week, he will be heading to Dubai to join his kids. It is Kayani who has to step in, as he did after the Long March. If Zardari listens to Kayani, he might survive. If not, Zardari will go dismissed by the CJ or the CJ will go dismissed by Zardari or Kayani will go dismissed by Zardari or if none of this were to happen the final nail in the coffin would be Kayani dismissing Zardari and taking over with the tacit approval of the CJ under the ‘law of necessity’. The last option is least desired but more likely given the current tussle. I don’t think Nawaz Sharif will be much a player in this round.
Some comments from the ATP Facebook Page:
– “y we just think about them only ,,, y dont v try 2 stand against them ,,, at least v can raise our voices ….”
– “Look the fight is not between zardari and CJ and I am confused as both are right.
Judges were appointed on seniority (Merit) base and I consider Merit culture as a culture of virtue.
On the other hands, everybody accept that the judges appointed were senior-most and hense on Merit but were not recommended by CJ.
Generally if I am on merit and my boss denies me a position and recommends my subordinate, I will seek a help from the law, but here the law does not recommend merit and claims protection under 177.
Which thing should we favor, Law or Merit when they are contradictory. In the end I think the Law should win against the Merit.”
– “I am proud of our judiciary and media to stand up to our president, who is behaving like a dictator. The answer to make democracy stronger in Pakistan is to make parliment supreme and answerable to voters. I wish Zardari has better advisers.”
– “Sir u are accurate, the public will suffer.”
– “panga bi to Zardari le raha hai. maine to calculate kar Liya, Zardari is going by March. He has eaten Pakistan enough. i mwaiting now for his very next move.
i thinK iMran khan should be made President. sub k satiya naas kar dega.”