The present situation in the country, by no means, admits of any institutional tussle. The defiance shown by the Executive, which in the matter of judges’ appointment and elevation is represented by the President-cum-party head, is packed with the same risk as General Pervez Musharraf faced, firstly on March 9, 2007 by calling Chief Justice Iftikhar Muhammad Chaudhry and secondly on November 3, 2007 by issuing a PCO and proclaiming a state of emergency. Interestingly, then Chief Justice Iftikhar Muhammad Chaudhry had defied the orders of Musharraf to quit the office and face charges before the Supreme Judicial Council and now Justice Saqib Nisar of LHC refused to accept the orders of the executive which were openly challenging the constitutional authority of the Chief Justice.
In the previous case, the sacked judges, led by Justice Chaudhry had fought their case at the public platform and emerged victorious to an utter defeat of the dictatorial and arbitrary step of Pervez Musharraf who had also managed to divide the judiciary into two wings: one of serving judges led by Justice Abdul Hameed Dogar; the other of dysfunctional ones led by Justice Chaudhry. However, in the present case, it is a democratic government and an elected President going against an independent judiciary. The present situation shows that it is tilted in favour of the Judiciary after Justice Saqib Nisar refused to take charge as Acting Chief Justice Lahore High Court and Justice Khawaja Muhammad Sharif is also staying in the seat. Reportedly, there are also some petitions on the way to the Supreme Court against the executive step and if it happens, the situation would take another turn. However, the government notification has already come before the court in the same way as it happened on November 3, 2007 when a seven-member Bench of the SC had stayed operation of the PCO and had restrained the judges from taking oath under the PCO of Pervez Musharraf. Previously Justice Dogar had rushed to take oath of the PCO and some judges had also flocked around him who later on, constituting a larger bench, had set aside the seven-bench stay order, which however had been declared null and void in July last when the reinstated judiciary scrapped the PCO as well as oath of judges taken under it.
The larger bench has now set aside the notification issued by President Zardari. This order has taken effect immediately against the executive order unlike that of November 3 when the PCO oath had suppressed the seven bench decision. However when it was resuscitated through the restored judiciary, it packed up the PCO judges.It merits mentioning here that Justice Saqib, about whom it was whispered that he was being made the Chief Justice of LHC by the authoritarian approach of the Executive, laid bare his mind saying that he would follow Chief Justice Ifitkhar Muhammad Chaudhry only and he came true to his word last evening when he refused to take oath of the CJ. In this way, he clearly expressed unity of the present judiciary and firmed up its independence which was not seen in November 1997 when the Judiciary under Justice Sajjad Ali Shah had a head-on with Nawaz Sharif government and in November 2007 with the regime of General Musharraf. To reassure his commitment, Justice Nisar also went to the residence of Justice Khwaja Muhammad Sharif to express solidarity with the cause of judiciary and expressed his commitment to render any sacrifice for the sake of independence of judiciary. This is another unprecedented gesture and a revelation that judiciary of the day, is not that of the past, when a question mark existed against its name for being under the influence of the government.
A thinking mind looks for the answer to the question as to where the fault lies to lead the nation to another crisis after it is already up against many odds. A common man has been long searching for the justice and his constitutional rights and end to corruption of the elite class which had brought about his miseries throughout. It could not happen earlier for most of the members in the judiciary being politically hand picked and cared more to please their benefactors than to assert their independence and impartiality. But this factor is missing in the present judiciary, which has no other interest but to do what the law and the constitution requires it to do. Perhaps this is something that our elite rulers are not accustomed to, commented an expert.
Some experts say that defiance of the Chief Justice summary is tantamount to contempt of the court by the President. Advocate Muhammad Akram Sheikh says that President may be summoned to explain his position in that course. The situation is volatile.
Some other experts view the executive step amounting to declaration of war against Judiciary, the genesis of which they find in the Full Court decision on National Reconciliation Ordinance which was struck down in December last.
Since decision on the NRO, voices from the political, legal and the civil sides were up for the implementation of verdict which required the executive side to take steps for purging the system of corruption and retrieve the looted public money by reopening cases against the corrupt and judging them on the touchstone of an impartial and fair accountability system.
Legal experts have expressed serious concern at the bypassing of the recommendation extended by Chief Justice of Pakistan Iftikhar Muhammad Chaudhary which they said under the Constitutional cannot be set aside unless cogent and valid reasons are given by the executive to the satisfaction of the CJP. They have expressed serious apprehensions of two organs of the state being pitted against each other particularly in a situation when the Supreme Court is already seized of the matter relating to the appointment of Judges in the Superior Judiciary which also touches the question relating to the constitutional meaning of the recommendations of Chief Justice of Pakistan. They have single opinion that recommendations of the Chief Justice of Pakistan about the appointment of a judge cannot be overruled by the Executive side, led by the Prime Minister, unless the CJP is told through a proper channel as to why it wanted to do so. Otherwise the recommendations of the CJP, as head of the Judiciary, is binding on the Executive and it violates the constitutional as well as the parameters set by Al-Jihad case of 1996 if does not follow the same.
Former Advocate General of Pakistan Ashtar Ausaf Ali Khan says that the presidential notification could take effect only if that is issued with the consultation with the Chief Justice. Which is not present in the case in hand.
Experts say that given the current political divide in the country over the vital constitutional issues, the re-emergence of a political confrontation on judiciary cannot be ruled out. They question that in this current situation, when the country is best by problems galore would another tussle be affordable to the patience of the public.
APP add: Former President Supreme Court Bar Association of Pakistan Ali Ahmed Kurd has outrightly rejected any clash between the vital institutions saying that people, who sacrificed and spearheaded lawyers’ movement for two years, would not allow any clash.
Talking to private TV channel, he said the principle has been set in the famous Al-Jihad Trust case that senior most judge of a High Court would be elevated to the Supreme Court of Pakistan.
He said any clash between vital institutions would not be good for the country. He urged all stake holders to act patiently and try to resolve the matter amicably.
Dr Khalid Ranjha said that vacuum is being deliberately created to pave the way for a third party’s interference.
Speaking to a private TV channel, he said that most of the people vowed defending the democracy.
