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If Chief Justice Khawaja Sharif did not accept this appointment, he would be deemed to have retired from office by virtue of Article 206(2) of the constitution. These appointments were contrary to the recommendations of the chief justice of Pakistan, Iftikhar Chaudhry. The recommendations were conveyed to the government during the consultative process envisaged in Article 177.
The government's view has been that since the office of a judge was vacant due to the retirement of Justice Khalil Ramday, the senior-most judge of the LHC, i.e. its chief justice, should be elevated to the SC while the next in terms of seniority should be LHC chief justice. The government claims it is adhering to the principle of seniority.
As against this it appears that Justice Chaudhry had recommended the elevation of Justice Saqib Nisar to the SC and the appointment of Justice Khalil Ramday as ad hoc judge of that court. The government conveyed to the chief justice its disagreement with these views. The matter was then reportedly referred back to the government with the chief justice reaffirming his original opinion.
In the light of the SC judgments in the Al Jihad Trust PLD 1996 SC 324, the Supreme Court Bar Association PLD 2002 SC 939 and the Sindh High Court Bar Association PLD 2009 SC 879 cases, read together with Article 260 of the constitution, the legal position that emerges is that the consultative process envisaged for the appointment of judges between the government and the chief justice should be effective, meaningful, purposive and consensus-oriented, leaving no room for complaint of arbitrariness.
On the issue of appointment of the judges to the superior courts the Pakistani chief justice's recommendation is entitled to be accepted in the absence of very sound reasons forwarded by the executive. The reasons recorded by the executive are justiciable while the opinion of the chief justice of Pakistan is not justiciable. These principles were reaffirmed by a 17-member bench of the Supreme Court in its recent pronouncement on July 31, 2009 reported in PLD 2009 SC 879.
The government's contention appears to be that it was following the neutral and universally acclaimed principle of seniority and this being a sound and legitimate reason, it was entitled to deviate from the recommendation of the chief justice. Even in the Al Jihad Trust case the SC had observed that the senior-most judge of the high court had a legitimate expectancy to be considered for appointment as the chief justice of the high court.
The principle of seniority was also reaffirmed in the case of Malik Asad Ali PLD 1998 SC 161 where the SC held that in the absence of concrete and valid reasons, the senior-most judge has to be appointed chief justice. Following this principle former Chief Justice Sajjad Ali Shah was even removed from office.
While the SC's observations in the Al Jihad Trust and Malik Asad cases and the principle of seniority do lend some weight to the government's views, convention and the subsequent SC judgment in the Supreme Court Bar Association PLD 2002 SC 939 case negate the government's views. In the Supreme Court Bar Association case, the SC had held that the principle of seniority and legitimate expectancy could not be extended to the appointment of judges of the Supreme Court.
That in view of the judgment of the SC, in the case of the Supreme Court Bar Association case, the principle of seniority and legitimate expectancy had no application to the appointments is a matter of consideration. Indeed the present government had itself deviated from the principle of seniority while elevating the judges of the Sindh High Court to the SC. Furthermore, the appointment of Justice Saqib Nisar as acting chief justice and that too while the office was still not vacant was even otherwise anomalous.
The government's commitment to the principle of seniority is also questionable in view of its recent appointment of a very large number of civil servants to the top grade bypassing numerous senior civil servants. When this was challenged before the SC, the government had absolutely no qualms in defending its rejection of the principle of seniority in a situation where it is otherwise most desirable.
Moreover, the government has unnecessarily stalled the appointment of a large number of judges to the high courts which is causing very serious problems for the public at large and burdening the existing judges of the high courts with an unbearable workload. Also the undue haste and surreptitious manner in which these two notifications were issued leave much to be desired. Besides the constitutional infirmity of these notifications, it is evident that the government wanted to present a fait accompli to the judges of the LHC to either accept this or face retirement.
It was in this context that the SC was compelled to act promptly in order to save two of the most illustrious members of the judiciary from being subjected to a highly undesirable situation.
The government must reconsider its strategy vis-Ã -vis the judiciary and its overall governance. If it feels genuinely aggrieved, the constitution provides various mechanisms including the filing of a reference before the SC itself for seeking guidance. The government is even entitled to amend the constitution but without deviating from its basic structure.
It chose to do neither. Instead, it opted for a course which is neither compatible with nor conducive to democratic governance. The government must act promptly to redeem the situation before it is too late. Submitting to the majesty of law is not a sign of weakness. In fact, it shows the confidence and inner strength of an elected government.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
