Pakistan: New 'Judges' Case' in the Making? Commentary
Pakistan: New 'Judges' Case' in the Making?
Edited by: Jeremiah Lee

JURIST Guest Columnists Moeen Cheema of Australian National University College of Law and Shahzad Akbar, an advocate practicing at the Lahore High Court in Pakistan, say that since Pakistan President's Zardari's refusal to appoint judges to the Lahore High Court (LHC) seriously undermines the capacity of that key court to provide justice in human rights cases and is a matter of public importance, either the LHC or the country's Supreme Court may eventually direct the president to comply with the Supreme Court's recent holding in the "Judges' Case"….


The threat of an imminent “clash" of the institutions of the state, the executive, and the judiciary appears to have materialized in Pakistan. The President, Asif Ali Zardari, and the Governor of Pakistan’s largest and most populous province of Punjab, Salmaan Taseer, are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court (LHC).

The president has refused Chief Justice Iftikhar Chaudhry's recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, popularly known as the Judges' Case, is being distorted and misquoted in order to justify the executive's refusal to appoint the judges.

In 1994, President Farooq Leghari, acting on the advice of Prime Minister Benzair Bhutto, appointed 20 judges to the LHC as well as acting chief justices to the LHC and the High Court of Sindh. This appointment of pro-government judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this context that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges' Case in 1996.

Article 177 of the Constitution states that: "The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice." In the Judges' Case the Supreme Court interpreted this provision to mean that while the president nominally has the power to appoint the chief justice of the Supreme Court, he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the President.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts "after consultation" with the Chief Justice of Pakistan, the Governor of the province and the Chief Justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the Governor. Again, it was held that the consultation with the chief justices is binding upon the President. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

As regards the appointment of the Chief Justices of the High Courts and the Supreme Court, it was held that the senior-most judge of that court has a legitimate expectation to be appointed to that position once it becomes vacant. However, the issue currently is very different from that taken up by the Supreme Court in the Judges' Case. Here the president's men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges' Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice, but it did not deal with the appointment of new judges to the Supreme Court, and it did not require the chief justices of the High Courts be elevated when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench examined the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments. Explaining the spirit of the Judges' Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority "is misconceived and travels beyond the parameters indicated in the Judges' Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court."

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words "the most senior of the other Judges" are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court's own words: "the absence of the words 'most senior' in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court."

Another argument which undermines the government's argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents of several such appointments to the Supreme Court.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and his opinion concerning the competence of an individual to serve as a judge is binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issues of seniority, suitability, and knowledge of law are areas which are to be judged by the chief justice.

In fairness, this is not the most suitable method in the world for making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Parliament if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historic
ally the case, or the chief justice, as has been the situation after the Judges' Case. The latter is clearly preferable.

Given the weight of the precedents and the underlying principles, it should not surprise anyone when the Supreme Court quashes the notification of appointment to the Supreme Court issued by the President in contravention of Chief Justice Chaudhary’s advice. Furthermore, if the president and the governor are under the impression that they can stall the appointments of judges to the LHC indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is "a question of public importance with reference to the enforcement of any of the Fundamental Rights." Article 199(1)(c) empowers a High Court to "make an order giving such directions to any person or authority, including any government…as may be appropriate for the enforcement of any of the Fundamental Rights." Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court's direction.

Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.

Postscript: Contrary to Chief Justice Chaudhary's recommendation, President Asif Ali Zardari issued a notification on February 13 purporting to elevate Justice Khwaja Sharif (Chief Justice of Lahore High Court) as a judge of the Supreme Court and appointing Justice Saqib Nisar as Acting Chief Justice of Lahore High Court.However, both of the judges refused to accept the notification as valid. The Chief Justice of Pakistan, Iftikhar Chaudhary, immediately took suo moto notice of the palpably unconstitutional action of the President and constituted a 3-member bench that suspended the notifications. The government initially defended its actions but relented in the face of rising public pressure and criticism from the bar, opposition political parties, and the media. The government withdrew the notifications on February 17 and the Prime Minister agreed to make all judicial appointments in the Supreme Court and the High Courts according to the recommendations of the Chief Justice of Pakistan.
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