WASHINGTON DC, May 9, 2005 | ISSN: 1684-2057 | www.satribune.com

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New CJ's Appointment: A Good Omen or a Shrewd Political Game

By M. Afzal Khan

ISLAMABAD, May 9: The elevation of Justice Iftikhar Mohammad Choudhry as the Chief Justice of Pakistan lays to rest the debate whether seniority should be the basis for promotion or not. That is, at least for the time being and, God willing, for the next over seven years when the new nominee attains the age of superannuation.

The announcement has come at an interesting time when a number of issues involving the higher judiciary are being debated, in courts, the bar councils and the media. The SC is hearing a petition to restore the extended retirement age for judges of superior judiciary.

There has been argument in the court whether seniority is the only basis for promotion. Law Secretary Mansoor last week triggered a controversy involving the outgoing Chief Justice about appointments of new judges in Sindh and Lahore High Courts. He told a National Assembly panel that the Chief Justice is sitting on recommendations. There was also some heated debate in the SC whether the judiciary should question the validity of a law passed by the Parliament or not.

Justice Choudhry was the senior-most judge in the Supreme Court next to the outgoing Chief Justice Nazim Hussain Siddiqui, who will relinquish charge on June 29 while the new chief takes oath next day. He is due to retire on Dec 11, 2013. When he completes that tenure, it will put him in the illustrious company of Justice AR Cornelius and Justice Mohammad Haleem as the longest serving chief justices in country’s history.

The timing of the announcement is interesting in two ways – it is perhaps unusual in Pakistan that such an announcement has been made about two months before it takes effect. Secondly, it comes on the eve of start of hearing of a petition challenging the withdrawal, under the 17th Amendment, of three years extension in retirement age of judges of superior courts. This extension was given by President Musharraf just on the eve of the 2002 elections and was regarded by critics as a step to influence the judges.

In Pakistan’s judicial history, only one instance comes to mind when a promotion was announced two months before it was to become effective, though it was not for the office of the Chief Justice. Rather it was made to block somebody from becoming one.

The Government of the time in 1967 did not want to make Justice Yaqoob Ali Khan as Chief Justice of the West Pakistan High Court. He was moved up to the Supreme Court and Justice Inamullah was named instead. Since there was no vacancy in the Supreme Court, his promotion was to take effect after two months when such a vacancy was to occur, though both announcements were made simultaneously.

While one should regard the judges as the salt of the earth and an exception, such early announcements are made to serve a particular purpose in case of other institutions – to make the incumbent lame-duck or pre-empt a mischief. The holder of world’s most powerful office, the President of the United States, becomes ineffectual towards the closing stages of his tenure. In Pakistan President Ghulam Ishaq Khan named Gen. Asif Nawaz as future Chief of Army Staff, apparently to upstage the scheming incumbent whose activities had become subject of destabilizing speculations for the Nawaz Sharif Government.

In the present case relating to the SC, the President has probably foreclosed many assumptions by appointing Justice Iftikhar. Judges hearing constitutional petitions last month passed some conflicting remarks whether the President has the authority to promote any judge in his discretion as Chief Justice or is bound by the verdict in what is known as the ‘Judges’ Case’, to confirm only the senior-most judge in that position.

Incidentally, Justice Iftikhar Choudhry disagreed with his superior and insisted that seniority has to prevail. He has now been proven right. In fact the principle was applied by the court on its own chief justice, Justice Sajjad Ali. The off-the-cuff remarks by judges during the hearing do not necessarily reflect in their final findings in the verdict but are regarded more as brain teasers. Justice Sajjad who presided over the Judges’ Case had to stew in his own juice and was shown the door by his colleagues.

Justice Iftikhar had a bit of luck as well to reach this exalted position. It would have been another story had President Musharraf not shaved the SC off some senior judges, including the then Chief Justice Saeeduz Zaman Siddiqui, who refused to take fresh oath of allegiance to him instead of the Constitution. Justice Iftikhar is the first Chief Justice of Pakistan from Balochistan. Earlier he got a promotion because of the sudden demise of Chief Justice Balochistan High Court, Justice Munawwar.

The Supreme Court Bar Association had been exhorting the judges not to take up the retirement case which directly concerns them. These pleas went unheard. The bar councils have also been agitating that the present Chief Justice of the Lahore High Court be promoted and moved to the Supreme Court. This too has not been accepted. Instead some junior judges got the chance to sit on the SC.

It is not clear what would be the fate of the petition on retirement age being heard by the Supreme Court from May 9. Supposing it chooses to restore the extension, it will be a moot point whether it would apply on an announcement that has already been made.

The writer is a senior journalist based in Islamabad

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