Dawn Edit: At Loggerheads

This Editorial was published in Dawn on January 24, 2010

Relations between the judiciary and the executive are deteriorating, if a certain section of the media and the political class is to be believed. The first alleged source of tension: the government is not acting on the Supreme Court’s directives in the NRO judgment.

But is the government really in violation of the NRO judgment already? Does the Supreme Court have to first decide what it is going to do with the review petition filed against the NRO judgment before the government is required to act? These are technical questions of law, whereas thus far the criticism directed at the government appears to be anything but technical. We must await clarification about the true legal position before any comment on the government’s obligations is in order.

 

The second source of tension is the apparent conflict over judicial appointments — an age-old tussle between the executive and the judiciary, but with a twist this time. The fate of two judges in particular appears to lie at the centre of the ‘dispute’: Justice Khalil Ramday (retd) of the Supreme Court and Justice Khwaja Sharif, the chief justice of the Lahore High Court. Justice Ramday retired earlier this month after reaching the constitutional age limit, but then was recommended as an ad hoc judge to the Supreme Court by Chief Justice Iftikhar Chaudhry. However, Justice Ramday’s retirement created an opening for a permanent judge in the Supreme Court and the government is believed to want to fill that position first — and therefore has held back on appointing Justice Ramday as an ad hoc judge.

The picture of confusion is completed by Chief Justice Khwaja Sharif of the Lahore High Court. Apparently, according to the rules of promotion determined in the 1990s, Chief Justice Sharif should be elevated to the Supreme Court to fill the position of a permanent judge vacated by Justice Ramday. But neither Chief Justice Sharif of the LHC nor Chief Justice Iftikhar Chaudhry of the SC appears interested in having the LHC chief justice go to the Supreme Court.

Why would a judge resist promotion to the Supreme Court? There can be many reasons, not least that the seniority rules could adversely impact the LHC CJ’s chances of eventually becoming chief justice of the Supreme Court. Of course, politicians are prone to seeing all sorts of conspiracies and those reasons could extend to judges being perceived as belonging to ‘other’, unfriendly camps. There is, though, an irony in the present appointment ‘tussle’: historically, the judiciary has sought strict rules to reduce the executive’s discretion in judicial appointments; this time, it is the judiciary that appears to want to deviate from non-discretionary rules.

Tags: Judiciary, NRO, Pakistan, Supreme Court