This Note was posted on my Facebook page by Mr. Noman Shabbir. I'm posting it here as received, with no amendments, respecting his right to express opinion. I would be, however, happy to respond to the important points raised by him, for it is important to generate an environment of healthy dialogue in our society. I thank Mr. Shabeer for writing this.
Note: that I Wrote this Note yesterday but could not post due to some net issues! But as the matter is of serious nature and Marvi Sarmad Tried to Mislead People of less interest in governmental or Judicial Matter thats why I thought it to be necessary to post it today when Prime Minister has acted according to the points Presented in this note and Expressed by all Experts of Constitution!
lines in inverted commas are of Marvi.
“There is a judicial crisis, the media says. This claim seems to be correct if one realizes the level of urgency the Supreme Court showed in responding to a presidential notification.”
Showing urgency is not, by any means, against the law of land of Pakistan! Neither it makes any action of Supreme Court Suspicious. The objection that the Supreme Court had acted in an unjust and objectionable haste and manner, to say the least, is capricious and without any substance. Like the top executives of the government such as the president house, the Prime Minister house, the Supreme Court also does not have fixed working hours. It is at the discretion of the chief justice to resume working and start hearing of cases and pass orders at any time as may be considered by the court as just and appropriate, in the circumstances of each case. The honorable Supreme Court has held hearing of cases many times, even in late hours of the evening and announced their orders late at night. Just to remind you that the same supreme court, Headed by Chief Justice Iftikhar Mohammad Chaudhry, Denounced/Invoked the proclamation of Emergency of November 3. Soon after the imposition of Emergency.
“Those having objections to the President’s notification say it violated Article 177 of the Constitution. The Said Article provides for a consultation with the Chief Justice (CJ) of the Supreme Court prior to making such appointments, but it does not give a Definition of the “consultation”.”
Sorry, President (Especially this president) knows the meaning of Consultation because he has already appointed twelve judges in lahor high court in 2009, The judges are Namely Syed Mansoor Ali Shah, Najam ul Hassan, Manzoor Ahmad Malik, Asad Munir, Ijaz ul Ahsan, Hafiz Abdul Rehman Ansari, Tariq Javaid, all Advocates Lahore and Sardar Tariq Masood and Nasir Saeed Sheikh, Advocates Rawalpindi, and District & Sessions Judges Mansoor Akbar Kokab, Imtiaz Ahmad and Sagheer Ahmad Qadri. So stop borrowing bogus reasoning from presidential camp and start to run your own Brain!
“It is also true that the CJ Supreme Court sent a summary to the president who subsequently rejected it and sent it back. The allegation of “not consulting the CJ” thus becomes irrelevant”
First you yourself accepted that it is not clear from the article 177 that what Consultation is and here you have decided that “rejection” of CJ’s recommendation is “Consultation” what a dubious Example of Reasoning!
“Article 177 does not make the CJ’s recommendation binding on the president.”
Once again this shows your sheer ignorance towards constitution, Judiciary and Its rulings. Let me explain you the article and related ruling of Supreme Court in this regard!
First of all you or I are not an authority to tell what article 177 is. It’s the right of Supreme Court to interpret the constitution. A perusal of the relevant provisions of the Constitution and the famous cases decided by the honorable Supreme Court, confirm beyond any doubt that consent of chief justices concerned for appointment of new judges or elevation from high court to the Supreme Court is mandatory under Article 260 of the Constitution in its present shape, and also on the basis of the decision of the Supreme Court in the famous Judges’ Case (PLD 1996 SC 324). It may also be noted if the president disagrees with the recommendations of the chief justices concerned, then he is obliged to give very sound reasons having substance for reconsideration of the recommendations by the chief justices.
“Interestingly, elevating a judge of a lower court to the apex court and Appointing the next senior judge as acting chief justice of the lower court does not seem to either derail democracy or attack on the independence of the judiciary. It rather seems to be quite in accordance with the principle of Seniority set by the Supreme Court in 1996 (Al-Jihad Trust Case).”
If president doesn’t consult with Chief Justice of Supreme court of Pakistan then by doing this he is committing an act of High treason by violating the article 177 of Constitution of Pakistan. It is also abundantly clear the requirement of the senior most judge fit is only mandatory for appointment as the chief justice and not for elevation of any judge of a high court to the Supreme Court as was repeatedly confirmed, inter alia, in the case of Supreme Court Bar Association vs. the Federation of Pakistan (PLD 2002 SC 939), where it is held “principles of seniority and legitimate expectancy neither apply nor can be expected to judges of the Supreme Court, and that no constitutional convention or past practice exists to appoint more senior judge of a high court as a judge of the Supreme Court…” Hence the plea in support of the notification that Mr. Justice Khwaja Muhammad Sharif, being the senior most judge of the Lahore High Court, could only be elevated to the Supreme Court is without any substance, and untenable in the light of the provisions of the Constitution and decisions of the Supreme Court.
“Justice Khwaja Sharif, whose elevation is in question, is a former member of a city council from Muslim League (now PML — N) and a family friend of the Sharifs, which makes it easier for the Sharif brothers to rule Punjab comfortably compared to a situation where a non-partisan judge becomes the Chief Justice of LHC.”
These lines completely exposes your mentality, Bias towards free and fair judiciary and Alignment towards PPP. I will raise a lot of Questions here,
Once again it’s not against the law of land of Pakistan that a counselor can’t become a judge! Verdicts are on Merit, if they are against merit then go supreme judicial counsel and get him removed! The same Judge Namely “Justice Khawaja Sharif took suo moto on lala zar case against Shahbaz Sharif” so you once again this shows your ignorance!
“What irks an objective mind is why the Supreme Court is making the Presidential decision a point of friction?”
And why the president is hell bent on Going against the Constitution? Last but not least, the people of Pakistan, who have been the ultimate casualty in every crisis induced by the interests of a few, have to think “objectively. For once, we all need to refuse to play in the hands of those who are pursuing nothing but their own vested interests. Many of us might have an opinion against the policies or persons of either Mr. Zardari or Mr. Sharif, but we have to keep our sanity intact and let reason prevail”
“Justice Khwaja or no Justice Khwaja, the Constitution and the spirit of democracy should be considered supreme.”
In democracy where constitution is written Sprit of Democracy means nothing. For example it will also become a matter of Frictions that what the Sprit of democracy is! Whatever is in constitution has to be obeyed by all President or judiciary or Parliament. Don’t forget that Constitution is supreme!
Here are some of the Reasons why the president was hell bent to elevate the above said judges to supreme court (clippings from Iqbal Haiders article, A Supreme court lawyer and former Minister of Law and Attorney General in The government of PPP).
In view of such a categorical constitutional position as explained above, the question arises then why did the president choose to issue the two notifications. I discard the possibility of incompetence of the legal advisers. I cannot accept the assumption that all of the bigwigs of the president were not well-versed with the Constitution or the decisions by the Supreme Court. The real reason and answer lies in Article 206(2) of the Constitution, which clearly provides “A judge of a high court who does not accept appointment as a judge of the Supreme Court shall be deemed to retire from his office…” In the not so distant past, we find a precedent on this issue. Mr. Justice Amirul Mulk Mengal, who was the chief justice of Balochistan High Court in 1998, had refused to accept his elevation to the Supreme Court. Hence, he retired prematurely.
This eventuality was very much expected by the coterie of advisers of the president who had drawn a “win-win strategy”. The condemnation and opposition to their notifications was very much expected by them. They had also envisaged the likelihood of the two judges concerned not accepting appointments conferred by the notifications. Hence, for the president there could not have been a better situation as the two judges upon not accepting their appointments would have retired prematurely. As a result of which, the president would have availed the opportunity of appointing judges of his choice, in their place. It was for this reason alone that the oath-taking ceremony of Justice Mian Saqib Nisar as acting chief justice of the Lahore High Court was simultaneously announced on Sunday morning and reportedly the governor had also returned the earlier summary sent by Chief Justice Khwaja Muhammad Sharif for appointment of the judges. This was done to confirm without any delay if the two judges are accepting their appointment or not.
On the other hand, had the two judges accepted the appointment the president would still be very happy, as it would have amounted to acceptance by the superior judiciary that the president has the power to reject recommendations of the chief justice of Pakistan. Such acceptance of appointments by the two judges would have established at least a precedent, howsoever it maybe in clear violation of the Constitution and decisions of the Supreme Court in famous cases, on this issue.
As expected, the two honorable judges in question rightly did not accept the appointments mentioned in the two notifications. They would have been treated as retired prematurely had the honorable chief justice and his peers available in Islamabad not rightly suspended operations of the notifications. Perhaps this prompt intervention by the honorable chief justice and the forthwith suspension of the notifications by a bench of the Supreme Court was not envisaged in the strategy framed by the legal wizards in the president house.