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PM the likely casualty of judges row
Wednesday, January 20, 2010
By our correspondent
ISLAMABAD: Prime Minister Yousuf Raza Gilani will become the scapegoat if President Asif Ali Zardari blocks the appointments of judges in the superior courts beyond the stipulated time or manoeuvres his choice appointments in violation of the Constitution or the Al-Jehad Trust case.
In case of the appointment of judges, the president is bound to act on the advice of the prime minister, which means that any violation of the Constitution or the Supreme Courts judgments would be the responsibility of the prime minister, former chief justice Saeeduzzamman Siddiqi told The News on Tuesday.
Justice Siddiqi said that a reference filed before the Supreme Court by the then president Sardar Farooq Khan Leghari in 1997 had sought the apex courts view over his contention that in the appointment of judges it was the presidents exclusive prerogative to act on the recommendations of the chief justice.
The same reference was turned down by the larger bench of the Supreme Court and ordered that in the cases of judges appointments the president is bound to act on the advice of the prime minister, the former chief justice said, adding that in the same ruling the Supreme Court had interpreted Article 48 of the Constitution that bounds the president to act in accordance with the advice of the cabinet or the prime minister.
Justice Siddiqi said that the president can use his exclusive prerogative in merely those appointments and actions for which the Constitution clearly empowers the president to act in his discretion.
Article 177(1) of the Constitution that deals with the appointments of judges in the Supreme Court does not use the words the president in his discretion. Instead it reads as: The chief justice of Pakistan shall be appointed by the president, and each of the other judges shall be appointed by the president after consultation with the chief justice.
In the judges case, the word consultation was interpreted completely in favour of the chief justice of Pakistan, whose recommendations for such appointments are made binding on the president (means executive the prime minister) unless the president has some plausible reasons to disagree with any of the recommendation of the CJP. Such reasons have to be formally communicated in writing to the CJP.
The president/PM has no right to change the CJPs recommendations and notify their choice appointments, which are contrary to the recommendations of the chief justice. In such a case, it would be the violation of the Constitution as recently stated by the registrar Supreme Court in his statement to The News.
In line with the principles as laid down in the judges case, the word consultation was given a new interpretation in the Constitution through the 17th Amendment. Article 160 of the Constitution defines the word consultation as: [consultation shall, save in respect of appointments of judges of the Supreme Court and high courts, means discussion and deliberation which shall not be binding on the president.]
Not only that Article 160 makes it binding on the president (should be read as prime minister) to honour the CJP recommendations but it is also mandatory on all the constitutional consultees as per the al-Jehad case to make appointments of judges within 30 days of the falling of the vacancy.
In case of the Supreme Court appointments, the federal government is sitting on the CJPs recommendations for over three weeks. In case of any delay beyond 30 days, onus would be on the prime minister and not the president to explain violation of the al-Jehad case on part of his government.
Similarly, if the president succeeds in notifying his choice appointments ie appointment of Justice Saqib Nisar as chief justice of the LHC and the elevation of LHC Chief Justice Khawaja Sharif as judge of the Supreme Court, it would be a violation of the Constitution and the al-Jehad case. For such a violation, again it would be Prime Minister Gilani and not the president, to be held responsible for this.
In the case of appointments of judges in the LHC, which are presently blocked by the Punjab governor since Dec 21, the onus for delay as against SCs order in the al-Jehad case would be on Governor Salmaan Taseer no matter on whose influence he is sitting on the file initiated by the CJLHC on Dec 1, 2009.
There is no explanation whether the president and the prime minister are aware of this constitutional and legal position, however, the fact remains that the president despite being the real actor behind the present executive-judiciary confrontation, is secure, enjoying his immunity from penalty. The scapegoat, in case of any mess, would thus be the prime minister.
PM the likely casualty of judges row
Wednesday, January 20, 2010
By our correspondent
ISLAMABAD: Prime Minister Yousuf Raza Gilani will become the scapegoat if President Asif Ali Zardari blocks the appointments of judges in the superior courts beyond the stipulated time or manoeuvres his choice appointments in violation of the Constitution or the Al-Jehad Trust case.
In case of the appointment of judges, the president is bound to act on the advice of the prime minister, which means that any violation of the Constitution or the Supreme Courts judgments would be the responsibility of the prime minister, former chief justice Saeeduzzamman Siddiqi told The News on Tuesday.
Justice Siddiqi said that a reference filed before the Supreme Court by the then president Sardar Farooq Khan Leghari in 1997 had sought the apex courts view over his contention that in the appointment of judges it was the presidents exclusive prerogative to act on the recommendations of the chief justice.
The same reference was turned down by the larger bench of the Supreme Court and ordered that in the cases of judges appointments the president is bound to act on the advice of the prime minister, the former chief justice said, adding that in the same ruling the Supreme Court had interpreted Article 48 of the Constitution that bounds the president to act in accordance with the advice of the cabinet or the prime minister.
Justice Siddiqi said that the president can use his exclusive prerogative in merely those appointments and actions for which the Constitution clearly empowers the president to act in his discretion.
Article 177(1) of the Constitution that deals with the appointments of judges in the Supreme Court does not use the words the president in his discretion. Instead it reads as: The chief justice of Pakistan shall be appointed by the president, and each of the other judges shall be appointed by the president after consultation with the chief justice.
In the judges case, the word consultation was interpreted completely in favour of the chief justice of Pakistan, whose recommendations for such appointments are made binding on the president (means executive the prime minister) unless the president has some plausible reasons to disagree with any of the recommendation of the CJP. Such reasons have to be formally communicated in writing to the CJP.
The president/PM has no right to change the CJPs recommendations and notify their choice appointments, which are contrary to the recommendations of the chief justice. In such a case, it would be the violation of the Constitution as recently stated by the registrar Supreme Court in his statement to The News.
In line with the principles as laid down in the judges case, the word consultation was given a new interpretation in the Constitution through the 17th Amendment. Article 160 of the Constitution defines the word consultation as: [consultation shall, save in respect of appointments of judges of the Supreme Court and high courts, means discussion and deliberation which shall not be binding on the president.]
Not only that Article 160 makes it binding on the president (should be read as prime minister) to honour the CJP recommendations but it is also mandatory on all the constitutional consultees as per the al-Jehad case to make appointments of judges within 30 days of the falling of the vacancy.
In case of the Supreme Court appointments, the federal government is sitting on the CJPs recommendations for over three weeks. In case of any delay beyond 30 days, onus would be on the prime minister and not the president to explain violation of the al-Jehad case on part of his government.
Similarly, if the president succeeds in notifying his choice appointments ie appointment of Justice Saqib Nisar as chief justice of the LHC and the elevation of LHC Chief Justice Khawaja Sharif as judge of the Supreme Court, it would be a violation of the Constitution and the al-Jehad case. For such a violation, again it would be Prime Minister Gilani and not the president, to be held responsible for this.
In the case of appointments of judges in the LHC, which are presently blocked by the Punjab governor since Dec 21, the onus for delay as against SCs order in the al-Jehad case would be on Governor Salmaan Taseer no matter on whose influence he is sitting on the file initiated by the CJLHC on Dec 1, 2009.
There is no explanation whether the president and the prime minister are aware of this constitutional and legal position, however, the fact remains that the president despite being the real actor behind the present executive-judiciary confrontation, is secure, enjoying his immunity from penalty. The scapegoat, in case of any mess, would thus be the prime minister.
PM the likely casualty of judges row
