Archive for January, 2010

Wednesday, January 27, 2010

ISLAMABAD: Some top constitutional experts, senior lawyers and former judges have been grossly misquoting the judgment in the Al-Jehad Trust case, also known as the judges’ case, to criticise the chief justice of Pakistan’s recommendations for the elevation of Justice Saqib Nisar as a SC judge and appointment of recently retired Justice Khalilur Rehman Ramday on ad hoc basis.

There is no mention in the 125-page Al-Jihad Trust case ruling that the chief justice of a high court must be elevated as a Supreme Court judge and that a judge junior to the provincial chief justice could not be promoted. Similarly, the case does not bar the appointment of ad hoc judges. It says that an ad hoc judge could not be appointed against a permanent post, which is not the case in the instance of Justice Ramday.

Regarding ad hoc judges in the apex court, the Al-Jihad ruling says: “That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.” Justice Ramday was not recommended for appointed as an ad hoc judge against a permanent seat that was falling vacant with his retirement on 12 January, 2010. The CJP recommended the appointment of Justice Saqib Nisar as a Supreme Court judge against the only permanent vacancy falling in lieu of Ramday’s retirement. The second part of the recommendation was regarding the appointment of Justice Ramday as an ad hoc judge. This recommendation was perfectly in line with Article 182 of the Constitution as well as the principles laid down by the Al-Jihad case ruling.

Neither the Constitution nor the Al-Jihad Trust case ruling sets any principle or rule whereby the chief justice is bound to recommend the appointment of a provincial chief justice as judge of the Supreme Court.

Many constitutional experts have been heard arguing that according to the Al-Jehad verdict, LHC Chief Justice Khawaja Sharif instead of Justice Saqib Nisar was to be recommended as judge of the Supreme Court. However, the Al-Jehad judgment does talk of legitimate expectancy of the senior most high court judge but it is for the appointment of the provincial chief justice. The relevant principle of the judgment reads: “That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to be appointed as such in the court concerned.”

For the interest of readers, some relevant excerpts of the Al-Jehad case verdict are being reproduced here: “The words ‘after consultation’ employed inter alia in articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus?oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the chief justice of Pakistan and the chief justice of a high court as to the fitness? and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the president/executive.”

“That if the president/executive appoints a candidate found to be unfit and unsuitable for judgeship by the chief justice of Pakistan and the chief justice of the high court concerned, it will not be a proper exercise of power under the relevant article of the Constitution.”

“That the permanent vacancies accruing in the offices of chief justices and judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.”

“That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.” “That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to be appointed as such in the court concerned.”

“That since consultation for the appointment/confirmation of a judge of a superior court by the president/executive with consultees mentioned in the relevant articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.”

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