The federal law ministry's refusal to accept the recommendations for appointment of Justice Khalilur Rehman Ramday as an ad hoc judge of the Supreme Court on his retirement as a permanent judge and for elevation of Lahore High Court senior puisne judge Saqib Nisar's to the apex court has raised a number of questions of crucial importance to the independence of the judiciary and the rule of law.
The outcome of the controversy would have an impact not only on the existing state of relations between the judiciary and the executive but also on the future course of appointments in the superior judiciary. The ministry claims that the position taken by it is based on the 1996 judgement of the Supreme Court in the Judges' Case.
There is nothing new in the elevation of a senior judge or senior puisne judge to the Supreme Court in the presence of the chief justice of the High Court concerned. It had been an established practice. The court's emphasis on seniority and legitimate expectancy notwithstanding, there is no order or observation in the 1996 judgement in respect of such appointments.
The only consequence for a High Court chief justice recommending or agreeing to the appointment of a judge junior to him to the apex court is that he forgoes his seniority in the apex court if subsequently elevated. Chief Justice Khwaja Mohammad Sharif of the Lahore High Court, who has agreed to the elevation of Justice Saqib Nisar, would thus be junior to the senior puisne judge if elevated subsequently any time before his own retirement in December this year.
There are several instances of a High Court chief justice agreeing to the elevation of junior High Court judges to the Supreme Court. In the Lahore High Court, Justices Khalilur Rehman Ramday and Faqir Mohammad Khokhar became SC judges, while Chief Justice Falak Sher decided to stay on as the LHC chief justice.
More recently, in the Sindh High Court, Justices Anwar Zaheer Jamali and Khilji Arif Hussain, who was junior even to the senior puisne judge (Justice Mushir Alam), were made SC judges. Justice Rehmat Hussain Jaffri, who was appointed an SC judge, along with Justices AZ Jamali and KA Hussain, had retired as a junior SHC judge in 2007.
In the absence of an express constitutional bar, the practice has acquired the status of a convention. The 1996 judgement being cited by the federal law ministry to justify its stance upheld conventions as having the force of law. "Courts, while construing a constitutional provision, can press into service an established constitutional convention in order to understand the import and working of the same, if it is not contrary to the express provision of the Constitution," it declared.
No doubt, it said, the power of the appointment of superior court judges and chief justices is vested in the executive, the question is how this power is to be exercised. Conventions, the judgement emphasised, can be relied upon to regulate the power under the Constitution.
Ad hoc judges: As for the appointment of ad hoc judges in the Supreme Court, Article 162 of the Constitution empowers the Chief Justice to request, with the approval of the President, any person who has held the office of a judge of that court and since whose ceasing to hold that office three years have not elapsed to attend sittings of the Supreme Court as an ad hoc judge for such period as may be necessary.
An ad hoc judge shall have the same power and jurisdiction as a judge of the Supreme Court. The Chief Justice may also require, with the approval of the President, and with the consent of the Chief Justice of a high court, a (serving) judge of that court qualified for appointment as a judge of the Supreme Court, to officiate as an ad hoc judge of the apex court.
There is nothing in this provision to set it apart from other provisions relating to the superior judiciary and the rationale of the 1996 judgement is fully applicable to it, which means that the President shall have to state reasons if he rejects the CJ's recommendation in respect of an ad hoc judge. And the reasons can be subjected to judicial review by the Supreme Court.
The only condition stipulated by the 1996 judgement is that no ad hoc judge can be appointed under Article 182, while a permanent vacancy exists. That is why Justice Saqib Nisar of the LHC was recommended for elevation simultaneously to fill the vacancy created by the retirement of Justice Ramday as a permanent judge on January 11. Evidently, Justice Ramday was required to be retained in view of the pendency of important matters before the Supreme Court.
The detailed judgement on the National Reconciliation Ordinance is yet to be announced and his signature would be needed to finally dispose of the case. Besides, if the federal government or any aggrieved individual seeks or attempts to seek a review of the judgement on the NRO, the bench must have the retiring judge as one of its members, as a review should be heard and adjudicated by the same bench that passed the judgement in the first instance.
Though the government claims to implement the judgement, it is quite obvious that it has serious reservations about many of its material and substantive components. The short order, which will constitute the operative part of the detailed judgement, was announced last month in order to enable the government to take prompt measures to implement it.
No action has, however, been taken so far on some of the vital directions made by the Supreme Court, such as the reorganisation of the National Accountability Bureau. The rejection of the CJ's recommendations on judicial appointments would, besides running contrary to the law, reinforce the impression that the government wants to somehow circumvent the judgement on the NRO.
Comments
Comments are closed.