I WOULD like to draw the attention of our law minister, who happens to be an advocate of the Supreme Court, and the law secretary, who happens to be a former judge of a superior court, towards the SC's judgment in Constitutional Petition No 1 (Supreme Court Bar Association through its President Hamid Khan versus the Federation of Pakistan) and Constitutional Petitions No 6, 7, 8, 9, 10 and 12 of 2002 dated April 10, 2002.
In the above-mentioned cases, the appointment to the SC of three LHC judges, namely Justice Khalilur Rehman Ramday, Justice Mohammad Nawaz Abbasi and Justice Faqir Mohammad Khokhar, who were at number 3, 4 and 13 on the seniority list, respectively, was challenged.
A five-member SC bench headed by the then Chief Justice Sheikh Riaz Ahmad examined the Judges' Case (Al Jihad Trust Case) of 1996 and Malik Asad Ali that of 1998, setting guidelines for the elevation of a High Court judge to the Supreme Court.
In paragraph No 23 on pages 55 to 57 of the verdict, the Supreme Court says
(i) The Chief Justice of Pakistan being the pater familia of the judiciary of the country is the best judge to ascertain and gauge the fitness and suitability of the judges working in the high courts for appointment as judge of the Supreme Court; and
(ii) Neither the principle of seniority is applicable as a mandatory rule for appointment of judges in the Supreme Court nor has the said rule attained the status of convention.
Paragraphs No 24 to 28 further elaborate the role of the CJP and the status of his recommendation, e.g. if seniority is to be considered the sole criterion, the role of Chief Justice of Pakistan stands undermined and the process of elevation of the most senior judge of the High Court to the Supreme Court would become a mechanical process.
It was also held that if a lawyer or a retired judge is to be appointed judge of the Supreme Court, as our Constitution does permit this (and lately it was practised by Chief Justice Abdul Hameed Dogar under the PCO while recommending some retired judges of the Sindh High Court and Lahore High Court to the Supreme Court soon after the Nov 3, 2007 emergency), then the principle of seniority stands vitiated, and only the recommendation of the Chief Justice of Pakistan regarding fitness of the candidate will hold field. Therefore, the CJP's recommendations are 'almost' binding on the head of the executive (the verdict is readily available at website www.supremecourt.gov.pk).
The law minister should study the book of statute afresh and advise the prime minister that a law on the subject has already been laid down by the SC in Judges Case of 2002 and relying merely on the 1996 case seems to be shallow.
Without indulging in controversy whether it is good, the 2002 verdict has an overriding effect and it remains the law of the land as long as it is not modified by the SC itself through legislation by parliament.
It appears that the minister and his secretary are misguiding the chief executive and this adventurism might lead to collision between the two pillars of the state, harming the country.
If the law minister, the law secretary and the prime minister correctly understand and apply the law laid down by the Supreme Court in 2002, the constitutional chaos on our threshold can be avoided.
ASAD SIDDIQUI
Lahore