ISLAMABAD, April 29 A Supreme Court bench headed by Chief Justice Iftikhar Mohammad Chaudhry on Wednesday examined a secret intelligence report about a contender for judicial post before deciding a case.
A former additional judge of the Lahore High Court, Chaudhry Iftikhar Hussain, had invoked direct human rights jurisdiction of the apex court to lay claim to a permanent position in the high court. Justice Hussain, currently a district judge, was elevated as an additional high court judge in 2002 for two years after which his service was extended for another year till 2005. Contrary to normal practice of confirming additional judges in their posts if advised by the Chief Justice of Pakistan, Justice Hussain was not confirmed. As a result, he reverted to the post of sessions judge, special court in Lahore, where he is scheduled to retire on May 14, 2009.
The Supreme Court ordered that the prime minister should reconsider the case of Justice Hussain for appointment to Lahore High Court as a follow-up to the president returning his file for reconsideration by the prime minister.
Justice Hussain was represented by former Attorney General Malik Muhammad Qayyum and Advocate Akram Sheikh.
Answering questions from the bench, Deputy Attorney General Shah Khawar admitted that there was nothing on record against the petitioner judge and that the Chief Justice of Lahore High Court, governor of the province, Chief Justice of Pakistan (Justice Iftikhar Mohammad Chaudhry) and even prime minister had all recommended Justice Hussain for appointment to the high court. Mr Khawar, however, pointed out that some remarks were scribbled by then president Musharraf on Justice Hussain`s file which said that some “negative information” had been provided to the president about the petitioner judge. He disclosed that the president sent back the file of the petitioner judge back to the prime minister for reconsidering his earlier advice but the file never reached the prime minister.
“If there is some serious negative information then how could he even serve as additional judge of Lahore High Court and even as a sessions judge,” asked Justice Raja Fayyaz. Mr Khawar said there were no details of any negative information but he presented a secret file to the apex court.
It was a unique case that triggered a debate about the powers of the chief justices of the high courts, governors of the provinces, prime minister, the president and above all the intelligence agencies in the appointment of superior court judges. The petitioner, an additional session judge from Lahore, invoked human rights jurisdiction of the Supreme Court to claim that he was wrongfully denied appointment as a Lahore High Court judge even after three years of service in the high court as an additional judge.
Justice Chaudhry Iftikhar Hussain was appointed in Lahore High Court on a temporary basis but was not confirmed in his job despite recommendations by the Chief Justice of Lahore High Court, Governor Punjab, Chief Justice Iftikhar Muhammad Chaudhry, and even the prime minister. As per the record presented to the court on Wednesday, in 2005 President Musharraf refused to accept the legally binding advice of the then prime minister and remarked on the file that there were some negative information about the judge.
The government`s lawyer admitted that after the return of the file from the presidency the case was never taken up by the prime minister for consideration. The court returned the secret file to the government`s lawyer and ordered that the prime minister should once again examine the case of Justice Hussain and make a fresh advice to the president within next two weeks after which he was scheduled to retire.
Lawyers and judiciary are opposed to intelligence reports becoming a basis for appointment to the judiciary. The intelligence agencies` clash with judiciary became public in March 2007 when in the presence of the chief of intelligence, Chief Justice Iftikhar Mohammad Chaudhry was asked by Musharraf to resign.
Malik Qayyum was asked after the court hearing, if he was opposing the decision of President Musharraf to ignore Justice Hussain in appointing him as judge. He said it was a matter of principle. “If Musharraf refuses to stick to principles then I will oppose him”, Malik Qayyum who was attorney general during the Musharraf rule, said.