By Yasser Latif Hamdani
In all likelihood, the judicial crisis will be over in the late afternoon today when the Federal Government will withdraw its notification thus burying the basic issue in the crisis. The heroes to save the day are once again none other than Barrister Aitzaz Ahsan – the great bridge builder- and Prime Minister Gillani who has proved himself to be a statesman.
When divorced from the drama of high politics, there are some legal issues that need some urgent attention. First and foremost is the issue of the consultation of Chief Justice being a mandatory provision for the appointment and elevation of the said judges under 177. The meaning of consultation is provided under Article 260 where such deliberation is not binding on the president save in matters pertaining to appointment of judiciary. It may be noted here that this was inserted in the constitution through LFO 2002 by General Pervez Musharraf and therefore ratified under the 17th amendment.
Under the present law, which itself should be a subject of some controversy, the executive has to consult the Chief Justice and if the Executive disagrees then he states his reasons which are then taken up by the Chief Justice after which the Chief Justice may accept or reject it- the latter course referring the matter to It is also quite clear that seniority is not necessarily a mandatory convention. Reliance for is placed on the “Judges Case” 2002. Interestingly one of the signatories of this judgment was Justice Hameed Dogar. This poses new problems. Shouldn’t those arguing against the 17th amendment and against PCO-ed judges like Hameed Dogar be blocked by the principle of estoppel? At the very least those arguing against the presidential notification right now ought to reconsider their position in this light.
However more importantly the question must be raised as to whether this involvement of the Chief Justice in the process of selection of judges desirable? Pakistan seems to have borrowed heavily from the Indian method- see page 31 of the 2002 Judges Case- which is given under Articles 124 and 217 of the Constitution of India. Was it really the intention of the founding fathers of the Indian constitution and did the founding fathers of Pakistani constitution following that tradition intend for consultation to adopt the meaning it has under General Musharraf’s addition to article 260 of Constitution of 1973? The proposal to provide for the concurrence was shot down very early on. Dr. Ambedkar when speaking on the issue of the judges’ appointments during debate on the formulation of the Indian constitution said that the consultation with the president and the chief justice for the moment sufficient. This is enough as to ascertain the true intention behind the formulation of this method in the subcontinent. A clear distinction was drawn between concurrence and consultation and the same has been the subject of many a committee and commission in India. Furthermore interpreting article 217 which speaks of consultation by executive of the Chief Justice, in AIR 1982 SC 149, (landmark 1st Judges Case of India) Justice Bhagwati opines that it is open to the Central Government to override the deliberations and the view of the Chief Justice of India.
What this boils down to is that consultation with the Chief Justice of Pakistan and his/her assent was not quite intended by the makers of this constitution to be binding on the president or sine qua non for appointment. In any event, the Chief Justice of Pakistan should not be the final arbiter and determinant of such judicial appointment and if we are so enamored by the Indian example, we should introduce a collegium of judges which should advise the Chief Justice as well, which still should be subject to an overriding authority of the executive. The objective should be to establish the dominance of the executive in matters of ideology and background and the Chief Justice should play a role in making a call on the legal acumen of the proposed judge. This way democracy will ensure balance in judiciary and its over all independence. It goes without saying that the appointment of likeminded judges to higher judiciary is an important exercise of democracy and party politics. Today PPP may appoint its candidates and tomorrow it would be PML’s turn.