A starter kit to block Justice (r) Khalilur Rehman Ramday’s appointment as an ad hoc judge of the Supreme Court is under assembly. It’s clear as the blue sky that the Zardari government is loath to see the fiercely independent judge back on the Supreme Court bench. It has therefore declared that Chief Justice Iftikhar Chaudhry’s letter sent to President Zardari nominating Justice Ramday has not reached its destination! More on that in a minute.
Meanwhile respected jurists like S M Zafar, Justice (r) Tariq Mahmood (my hero for the CJ’s restoration movement) and the most venerable of all, Justice (r) Fakhruddin G Ebrahim are going on TV channels speaking against the re-appointment of Justice Ramday. On a recent chat show, the three gentlemen unanimously demanded that the chief justice “take back” his request to the president asking for the rehiring of Justice Ramday.
PML-Q Senator S M Zafar is technically right when he says that an ad hoc judge can only be appointed to the Supreme Court when all the vacancies have first been filled up. “Unless his newly vacated seat on the Supreme Court bench gets filled up by a judge of the High Court, it’s premature to ask the president to appoint Justice Ramday.”
But what S M Zafar didn’t tell the viewers was that only two months ago, when Justice Ghulam Rabbani retired from the Supreme Court, the vacancy was filled up by a judge of the Sindh High Court along with the appointment of Justice Rabbani as an ad hoc judge. It was done simultaneously. President Zardari gave his blessings to both the gentlemen who by the way took the oath one after another. The first to take the oath was the newly appointed judge followed by Justice Rabbani as an ad hoc judge.
“Justice Ramday’s extension is against all principles,” announced Justice (r) Fakhruddin G Ebrahim. This was his signature tune throughout the talk show. Did Justice Ebrahim and S M Zafar voice similar discontent when Justice Rabbani got an extension only last October? If so, then I salute the two for being men of ‘principles’.
Justice (r) Tariq Mahmood, I adored, because he lambasted dictator Musharraf during the restoration of the CJ and other judges like Justice Ramday. He stood behind them like a rock, a voice of reason and courage, never abandoning their cause. Today, he’s gone sour. Why? Criticising the CJ’s move to rehire Justice Ramday, Tariq Mahmood cited the Al-Jihad Trust case, insisting that a retired judge of the Supreme Court is not eligible for reappointment. But surely he must know that apart from Justice Rabbani’s extension, Justice Hamid Ali Mirza retired and was made an ad hoc judge in 2005. The tradition goes back to 1976, when Justice Waheedudin (father of Justice Wajhiuddin) was appointed an ad hoc judge after he retired from the Supreme Court.
I hope this clears up some things.
The anchor too, in unholy haste, passed judgment on Justice Ramday’s extension. “The chief justice’s letter to the president asking for Justice Ramday’s reappointment does not carry weight and therefore should be withdrawn.”
Why is the return of Justice Ramday causing such anguish among the punditocracy?
Our Constitution stipulates that the number of judges in the Supreme Court along with the chief justice must be fixed by parliament. Should the number be increased, then it can only be done by a ‘President Order.’ In 2007, an Act of Parliament fixed the number of judges at 16 plus the chief justice. But Article 182 of the Constitution states that if “temporary” judges are needed, then the chief justice is authorised to appoint anyone whenever he feels that he needs more judges in the Supreme Court. He can do it in two ways: either elevate a sitting judge of the High Court or appoint a retired judge of the Supreme Court within three years of his retirement. While the president appoints a judge of the Supreme Court in “consultation” with the chief justice, the protocol is reversed in the appointment of an ad hoc judge. The chief justice appoints the ad hoc judge with the “approval” of the president!
Make no mistake: the chief justice wants Justice Ramday as an ad hoc judge to the Supreme Court.
Traditionally, the president never turns down the chief justice’s request. Doing so would mean an outright confrontation. But were that to happen, the president would be required to put in writing his reasons for not agreeing to the appointment. In Justice Ramday’s case, President Zardari would have a hard time finding holes in his character. The witty, tough-minded judge has assumed an iconic stature. An editor in Lahore brought out a whole supplement when Justice Ramday retired.
What our distinguished legal experts and equally initiated anchors should be asking instead is: what is the fate of the chief justice’s letter to President Zardari recommending Justice Ramday’s appointment?
I gave a letter to the postman/he put it his sack/bright and early next morning/he brought my letter back… Return to sender, address unknown/No such number, no such zone/return to sender/ return to sender/return to sender
The above song is a 1962 rock and roll hit single by the American heartthrob, Elvis Presley. Surely our president and prime minister must have heard and swung to it in their disco years; surely our learned law minister ‘Dr’ Babar Awan must have heard it on his transistor many a time; surely our lordships, Honourable Chief Justice of Pakistan Iftikhar Mohammad Chaudhry, and Supreme Court’s Justice Khalilur Rehman Ramday must have come across the lyric. And of course the earnest Farhatullah Babar, now the presidential spokesman, must know of Elvis and his pop songs.
We are all of the same vintage, no matter what our station in life today. But the honourable mention of the above gentlemen is linked to a letter which has gone missing. And I fear the case of the missing letter will fall through the cracks once the Supreme Court issues its detailed judgment against the NRO!
The letter encased in a file, stamped and sealed from the office of the highest adjudicator in the land left the Supreme Court premises over two weeks ago. The distance it had to cover was a few furlongs. Even if it was not sent through a ‘special messenger’ or couriered via a commercial organisation or sent ‘by hand,’ but instead was put in the mailbox to be delivered through snail mail, where in the world does it take more than 14 days to reach the most important address in the country – the presidency? The law minister has a lot to explain why his department failed to deliver the letter from no less a person than the chief justice of Pakistan.
Are we the Flintstones living in the Stone Age?
Let a thousand Khalilur Rehman Ramdays bloom. Pakistan needs judges like him to be models of honesty, truth and upholders of law. Since Musharraf’s reference against the chief justice got thrown out in July 2007, the full bench of the Supreme Court has been seized with handling political cases, the latest being the NRO. Hearing of routine cases has been thrown by the wayside. Two million cases had piled up at all levels of judicial hierarchy when the independent judiciary was restored last March.
Let’s get serious.
By: Anjum Niaz