It’s all about Constitution Marvi, Keep

Bias aside! (An analysis of Marvi’s

Article Printed in Daily times)

Note: that I Wrote this Note yesterday but could not post due to some net issues! But as
the matter is of serious nature and Marvi Sarmad Tried to Mislead People of less interest
in governmental or Judicial Matter thats why I thought it to be necessary to post it today
when Prime Minister has acted according to the points Presented in this note and
Expressed by all Experts of Constitution!

lines in inverted commas are of Marvi.

“There is a judicial crisis, the media says. This claim seems to be correct if one realizes
the level of urgency the Supreme Court showed in responding to a presidential
notification.”

Showing urgency is not, by any means, against the law of land of Pakistan! Neither it
makes any action of Supreme Court Suspicious. The objection that the Supreme Court
had acted in an unjust and objectionable haste and manner, to say the least, is capricious
and without any substance. Like the top executives of the government such as the
president house, the Prime Minister house, the Supreme Court also does not have fixed
working hours. It is at the discretion of the chief justice to resume working and start
hearing of cases and pass orders at any time as may be considered by the court as just and
appropriate, in the circumstances of each case. The honorable Supreme Court has held
hearing of cases many times, even in late hours of the evening and announced their orders
late at night. Just to remind you that the same supreme court, Headed by Chief Justice
Iftikhar Mohammad Chaudhry, Denounced/Invoked the proclamation of Emergency of
November 3. Soon after the imposition of Emergency.

“Those having objections to the

President’s notification say it violated Article 177 of the Constitution. The
Said Article provides for a consultation with the Chief Justice (CJ) of the
Supreme Court prior to making such appointments, but it does not give a
Definition of the “consultation”.”

Sorry, President (Especially this president) knows the meaning of Consultation because
he has already appointed twelve judges in lahor high court in 2009, The judges are
Namely Syed Mansoor Ali Shah, Najam ul Hassan, Manzoor Ahmad Malik, Asad Munir,
Ijaz ul Ahsan, Hafiz Abdul Rehman Ansari, Tariq Javaid, all Advocates Lahore and
Sardar Tariq Masood and Nasir Saeed Sheikh, Advocates Rawalpindi, and District &
Sessions Judges Mansoor Akbar Kokab, Imtiaz Ahmad and Sagheer Ahmad Qadri. So
stop borrowing bogus reasoning from presidential camp and start to run your own Brain!

“It is also true that the CJ Supreme Court sent a summary to the president who
subsequently rejected it and sent it back. The allegation of “not consulting the CJ” thus
becomes irrelevant”

First you yourself accepted that it is not clear from the article 177 that what Consultation
Is and here you have decided that “rejection” of CJ’s recommendation is “Consultation”
what a dubious Example of Reasoning!

“Article 177 does not make the CJ’s recommendation binding on the president.”

Once again this shows your sheer ignorance towards constitution, Judiciary and Its
rulings. Let me explain you the article and related ruling of Supreme Court in this regard!

First of all you or I are not an authority to tell what article 177 is. It’s the right of
Supreme Court to interpret the constitution. A perusal of the relevant provisions of the
Constitution and the famous cases decided by the honorable Supreme Court, confirm
beyond any doubt that consent of chief justices concerned for appointment of new judges
or elevation from high court to the Supreme Court is mandatory under Article 260 of the
Constitution in its present shape, and also on the basis of the decision of the Supreme
Court in the famous Judges’ Case (PLD 1996 SC 324). It may also be noted if the
president disagrees with the recommendations of the chief justices concerned, then he is
obliged to give very sound reasons having substance for reconsideration of the
recommendations by the chief justices.

“Interestingly, elevating a judge of a lower court to the apex court and

Appointing the next senior judge as acting chief justice of the lower court does not seem
to either derail democracy or attack on the independence of the judiciary. It rather seems
to be quite in accordance with the principle of
Seniority set by the Supreme Court in 1996 (Al-Jihad Trust Case).”

If president doesn’t consult with Chief Justice of Supreme court of Pakistan then by
doing this he is committing an act of High treason by violating the article 177 of
Constitution of Pakistan. It is also abundantly clear the requirement of the senior most
judge fit is only mandatory for appointment as the chief justice and not for elevation of
any judge of a high court to the Supreme Court as was repeatedly confirmed, inter alia, in
the case of Supreme Court Bar Association vs. the Federation of Pakistan (PLD 2002 SC
939), where it is held “principles of seniority and legitimate expectancy neither apply nor
can be expected to judges of the Supreme Court, and that no constitutional convention or
past practice exists to appoint more senior judge of a high court as a judge of the
Supreme Court...” Hence the plea in support of the notification that Mr. Justice Khwaja
Muhammad Sharif, being the senior most judge of the Lahore High Court, could only be
elevated to the Supreme Court is without any substance, and untenable in the light of the
provisions of the Constitution and decisions of the Supreme Court.

“Justice Khwaja Sharif, whose elevation is in question, is a former member of a city

council from Muslim League (now PML — N) and a family friend of the Sharifs, which
makes it easier for the Sharif brothers to rule Punjab comfortably compared to a situation
where a non-partisan judge becomes the Chief Justice of LHC.”

These lines completely exposes your mentality, Bias towards free and fair judiciary and
Alignment towards PPP. I will raise a lot of Questions here,

Once again it’s not against the law of land of Pakistan that a counselor can’t become a
judge!
Verdicts are on Merit, if they are against merit then go supreme judicial counsel and get
him removed!
The same Judge Namely “Justice Khawaja Sharif took suo moto on lala zar case against
Shahbaz Sharif” so you once again this shows your ignorance!

“What irks an objective mind is why the Supreme Court is making the
Presidential decision a point of friction?”

And why the president is hell bent on Going against the Constitution?

Last but not least, the people of Pakistan, who have been the ultimate
casualty in every crisis induced by the interests of a few, have to think
“objectively. For once, we all need to refuse to play in the hands of those who are
pursuing nothing but their own vested interests. Many of us might have an opinion
against the policies or persons of either Mr. Zardari or Mr. Sharif, but we have to keep
our sanity intact and let reason prevail”

Agreed!

“Justice Khwaja or no Justice Khwaja, the Constitution and the spirit of democracy
should be considered supreme.”

In democracy where constitution is written Sprit of Democracy means nothing. For

example it will also become a matter of Frictions that what the Sprit of democracy is!
Whatever is in constitution has to be obeyed by all President or judiciary or Parliament.
Don’t forget that Constitution is supreme!

P.S.

Here are some of the Reasons why the president was hell bent to elevate the above said
judges to supreme court (clippings from Iqbal Haiders article, A Supreme court lawyer
and former Minister of Law and Attorney General in The government of PPP).

In view of such a categorical constitutional position as explained above, the question

arises then why did the president choose to issue the two notifications. I discard the
possibility of incompetence of the legal advisers. I cannot accept the assumption that all
of the bigwigs of the president were not well-versed with the Constitution or the
decisions by the Supreme Court. The real reason and answer lies in Article 206(2) of the
Constitution, which clearly provides “A judge of a high court who does not accept
appointment as a judge of the Supreme Court shall be deemed to retire from his office...”
In the not so distant past, we find a precedent on this issue. Mr. Justice Amirul Mulk
Mengal, who was the chief justice of Balochistan High Court in 1998, had refused to
accept his elevation to the Supreme Court. Hence, he retired prematurely.

This eventuality was very much expected by the coterie of advisers of the president who
had drawn a “win-win strategy”. The condemnation and opposition to their notifications
was very much expected by them. They had also envisaged the likelihood of the two
judges concerned not accepting appointments conferred by the notifications. Hence, for
the president there could not have been a better situation as the two judges upon not
accepting their appointments would have retired prematurely. As a result of which, the
president would have availed the opportunity of appointing judges of his choice, in their
place. It was for this reason alone that the oath-taking ceremony of Justice Mian Saqib
Nisar as acting chief justice of the Lahore High Court was simultaneously announced on
Sunday morning and reportedly the governor had also returned the earlier summary sent
by Chief Justice Khwaja Muhammad Sharif for appointment of the judges. This was done
to confirm without any delay if the two judges are accepting their appointment or not.

On the other hand, had the two judges accepted the appointment the president would still
be very happy, as it would have amounted to acceptance by the superior judiciary that the
president has the power to reject recommendations of the chief justice of Pakistan. Such
acceptance of appointments by the two judges would have established at least a
precedent, howsoever it maybe in clear violation of the Constitution and decisions of the
Supreme Court in famous cases, on this issue.

As expected, the two honorable judges in question rightly did not accept the
appointments mentioned in the two notifications. They would have been treated as retired
prematurely had the honorable chief justice and his peers available in Islamabad not
rightly suspended operations of the notifications. Perhaps this prompt intervention by the
honorable chief justice and the forthwith suspension of the notifications by a bench of the
Supreme Court was not envisaged in the strategy framed by the legal wizards in the
president house.