Appointment: A Good Omen or a Shrewd Political Game
M. Afzal Khan
May 9: The elevation of Justice Iftikhar Mohammad Choudhry as
the Chief Justice of Pakistan lays to rest the debate whether
seniority should be the basis for promotion or not. That is, at
least for the time being and, God willing, for the next over seven
years when the new nominee attains the age of superannuation.
announcement has come at an interesting time when a number of
issues involving the higher judiciary are being debated, in courts,
the bar councils and the media. The SC is hearing a petition to
restore the extended retirement age for judges of superior judiciary.
has been argument in the court whether seniority is the only basis
for promotion. Law Secretary Mansoor last week triggered a controversy
involving the outgoing Chief Justice about appointments of new
judges in Sindh and Lahore High Courts. He told a National Assembly
panel that the Chief Justice is sitting on recommendations. There
was also some heated debate in the SC whether the judiciary should
question the validity of a law passed by the Parliament or not.
Justice Choudhry was the senior-most judge in the Supreme Court
next to the outgoing Chief Justice Nazim Hussain Siddiqui, who
will relinquish charge on June 29 while the new chief takes oath
next day. He is due to retire on Dec 11, 2013. When he completes
that tenure, it will put him in the illustrious company of Justice
AR Cornelius and Justice Mohammad Haleem as the longest serving
chief justices in country’s history.
The timing of the announcement is interesting in two ways –
it is perhaps unusual in Pakistan that such an announcement has
been made about two months before it takes effect. Secondly, it
comes on the eve of start of hearing of a petition challenging
the withdrawal, under the 17th Amendment, of three years extension
in retirement age of judges of superior courts. This extension
was given by President Musharraf just on the eve of the 2002 elections
and was regarded by critics as a step to influence the judges.
In Pakistan’s judicial history, only one instance comes
to mind when a promotion was announced two months before it was
to become effective, though it was not for the office of the Chief
Justice. Rather it was made to block somebody from becoming one.
The Government of the time in 1967 did not want to make Justice
Yaqoob Ali Khan as Chief Justice of the West Pakistan High Court.
He was moved up to the Supreme Court and Justice Inamullah was
named instead. Since there was no vacancy in the Supreme Court,
his promotion was to take effect after two months when such a
vacancy was to occur, though both announcements were made simultaneously.
While one should regard the judges as the salt of the earth and
an exception, such early announcements are made to serve a particular
purpose in case of other institutions – to make the incumbent
lame-duck or pre-empt a mischief. The holder of world’s
most powerful office, the President of the United States, becomes
ineffectual towards the closing stages of his tenure. In Pakistan
President Ghulam Ishaq Khan named Gen. Asif Nawaz as future Chief
of Army Staff, apparently to upstage the scheming incumbent whose
activities had become subject of destabilizing speculations for
the Nawaz Sharif Government.
In the present case relating to the SC, the President has probably
foreclosed many assumptions by appointing Justice Iftikhar. Judges
hearing constitutional petitions last month passed some conflicting
remarks whether the President has the authority to promote any
judge in his discretion as Chief Justice or is bound by the verdict
in what is known as the ‘Judges’ Case’, to confirm
only the senior-most judge in that position.
Incidentally, Justice Iftikhar Choudhry disagreed with his superior
and insisted that seniority has to prevail. He has now been proven
right. In fact the principle was applied by the court on its own
chief justice, Justice Sajjad Ali. The off-the-cuff remarks by
judges during the hearing do not necessarily reflect in their
final findings in the verdict but are regarded more as brain teasers.
Justice Sajjad who presided over the Judges’ Case had to
stew in his own juice and was shown the door by his colleagues.
Justice Iftikhar had a bit of luck as well to reach this exalted
position. It would have been another story had President Musharraf
not shaved the SC off some senior judges, including the then Chief
Justice Saeeduz Zaman Siddiqui, who refused to take fresh oath
of allegiance to him instead of the Constitution. Justice Iftikhar
is the first Chief Justice of Pakistan from Balochistan. Earlier
he got a promotion because of the sudden demise of Chief Justice
Balochistan High Court, Justice Munawwar.
The Supreme Court Bar Association had been exhorting the judges
not to take up the retirement case which directly concerns them.
These pleas went unheard. The bar councils have also been agitating
that the present Chief Justice of the Lahore High Court be promoted
and moved to the Supreme Court. This
too has not been accepted. Instead some junior judges got the
chance to sit on the SC.
It is not clear what would be the fate of the petition on retirement
age being heard by the Supreme Court from May 9. Supposing it
chooses to restore the extension, it will be a moot point whether
it would apply on an announcement that has already been made.
writer is a senior journalist based in Islamabad