By Nasir Iqbal

ISLAMABAD: 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.

Legal and political experts were unanimous that this was the most serious confrontation between the Supreme Court and the Presidency since Gen Pervez Musharraf imposed emergency on Nov 3, 2007, and unconstitutionally sacked dozens of superior court judges, including the chief justice.

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.

“The president is pleased to appoint Mr Justice Khawaja Muhammad Sharif, Chief Justice of Lahore High Court, as judge of the Supreme Court of Pakistan with immediate effect,” the notification issued by the ministry of law, justice and parliamentary affairs, said.

Similarly the second notification says” The President is pleased to appoint Justice Mian Saqib Nisar, Judge, Lahore High Court as Acting Chief Justice of the said High Court with effect from the date of the notification of the appointment of Justice Khawaja Muhammad Sharif, Chief Justice of Lahore High Court as Judge of the Supreme Court of Pakistan.”

“It is a major development and the president appears to have acted on his own,” a constitutional expert on condition of anonymity said while talking to Dawn.

LITMUS TEST

“The order passed by the president will now be tested in the court,” he observed while referring to the court’s order of sending the matter before the five-judge bench already seized with a number of petitions on delay in the appointment of judges.

The bench will comprise Justice Mian Shakirullah Jan, Justice Raja Fayyaz Ahmed, Justice Jawwad S Khawaja, Justice Anwar Zaheer Jamali and Justice Rahmat Hussain Jafferi.

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.

LAWYERS’ MEETING

The elevations also came in the backdrop of another development of calling the meeting of the National Coordination Council (NCC) by the President of Supreme Court Bar Association (SCBA) Qazi Mohammad Anwar on Sunday.

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.

The country would be back to 100 years and the entire two years long lawyers struggle for the rule of law would go down the drain in case the non-democratic forces succeed, he feared.

President of Supreme Court Bar Association, Qazi Anwar, was of the view that show of strength at this juncture would be very dangerous and it seems that the president was bent upon pitting against the judiciary.

The notification is contrary to the recommendations of the chief justice, he said.

Earlier on January 23, the president had also turned down chief justice’s recommendation to elevate Justice Nisar in the Supreme Court.

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.
Source: The News
Date:2/14/2010