Mr. President, Mr. Chief Justice, Don’t Make This a Game of ‘Chicken’

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.