Discreet move to appoint a junior judge as CJ -DAWN - Top Stories; November 28, 2008
Discreet move to appoint a junior judge as CJ
By Nasir Iqbal
ISLAMABAD, Nov 27: Top advisers of the government are burning midnight oil in devising a way out to appoint a judge, much junior in line, as the next top adjudicator of the country after the retirement of incumbent Chief Justice Abdul Hameed Dogar, who will take off his robes on March next year, Dawn has learnt reliably.
Though still at a very initial stage, those privy to the discreet move are also vary of the backlash that the government could get from the people especially the lawyers’ community already up in arms against it for being piqued for not fulfilling the promise of restoring all judges sent home by former president Pervez Musharraf including deposed Chief Justice Iftikhar Mohammad Chaudhry.
They have been told, the source confided, that the government would be asking for the same trouble the country witnessed after the March 9, 2007, incident when the former president suspended Justice Iftikhar and sent a reference before the Supreme Judicial Council. All kinds of insults and abuses were heaped on the government by lawyers, civil society and the media then holding them responsible for everything.
Those in favour of such a move believe that the Constitution puts no restrictions to appoint a junior judge as Article 177 only suggests the appointment of the chief justice by the president if he is a citizen of Pakistan and has served as a judge of the high court for at least five years or has 15 years’ standing as advocate of a high court.
Besides, the Supreme Court while deciding the 1996 Al-Jihad Trust case commonly known as judges case and the 1998 Malik Asad Ali case had made a departure from the Constitution, which is silent about the seniority principle while appointing the chief justice.
However, those opposing the idea say that the judges case and the Malik Asad Ali case have already attained the force of a convention wherein it has been held that the senior-most judge has the legitimate expectancy to become the chief justice. The appointment of Justice Sajjad Ali Shah was also held invalid in the Malik Asad Ali case on the basis that seniority principle was not adhered to.
The critics of these judgments, however, believe that the apex court’s rebellion against Justice Sajjad Ali Shah was not an independent move; it was rather staged after acquiring the required support from the then Nawaz Sharif government.
They also conceded that violation of the judges case was done allegedly even by the former chief justice Sajjad Ali Shah soon after its announcement when he brought in a junior judge from the Sindh High Court while Justice Khalilur Rehman Ramday, Justice Faqir Mohammad Khokhar and Justice Muhammad Nawaz Abbasi were elevated to the apex court by disregarding the fact that Justice Falak Sher was the chief justice of the Lahore High Court then. Besides, judges like Justice Rana Bhagwandas were not confirmed and given extension after extension as ad hoc judge.
If the move carried through successfully without any hindrance, a junior judge would be appointed as the chief justice with whom the government believes it would be comfortable to work.
However, if the seniority principle is to be followed in letter and spirit, Justice Sardar Mohammad Raza Khan is the only judge at present to qualify to be the next Chief Justice of Pakistan.
Justice Sardar Raza Mohammad Khan, the most senior judge after the chief justice, was among the senior judges who were sent home by former president Pervez Musharraf when he as army chief proclaimed the emergency on November 3, 2007.
On September 20 this year, Justice Khan and other three judges took oath in the second phase of reappointment to become judge of the Supreme Court with their seniority intact.