Chief Justice Abdul Hameed Dogar to be Replaced
Saturday, November 29, 2008
By Tariq Butt
ISLAMABAD: The government is exploring three options to find a replacement of Chief Justice Abdul Hameed Dogar after his normal retirement in March next or his early retirement because of the ongoing controversy over granting of additional marks to his daughter.
But senior lawyers privy to judicial developments as well as officials, who spoke on the issue to The News on Friday, said the government might not be able to translate into reality any of the three options due to the likely public pressure.
Given the fact the lingering hullabaloo over the ouster of then-chief justice Iftikhar Muhammad Chaudhry by Gen (retd) Pervez Musharraf had the potential to ignite public agitation, some officials argued the government would not take any step that could prove counterproductive.
Two famous Supreme Court judgments of 1996 and 1998 might also be a hurdle in the way of implementation of the options the government was pondering, one constitutional lawyer said. On the face of it, the move is meant to deprive Justice Sardar Mohammad Raza Khan — the senior-most judge after Dogar — of getting the highest judicial slot. Khan was among the judges thrown out of the Supreme Court by the Nov 2 Provisional Constitution Order (PCO).
When the government recently reappointed several deposed judges, Raza was also taken back. Though all the justices were freshly appointed, yet they were given the seniority they had before Nov 2.
“This gave rise to serious cribbing among the judges who have taken oath under the PCO and stood with Musharraf,” a knowledgeable official told The News. Some of the judges, according to the source, say while they had attracted lots of brickbats, those who did not stand with the government at the time had been given the benefit of seniority they previously had.
Senior lawyers characterised Justice Raza Khan as a “good judge” who would not be mindful of what the government might think of his decisions as judge or as chief justice for that matter. The official felt the PPP government would not be comfortable with Justice Raza Khan as chief justice and, therefore, official quarters were mulling going for other alternatives.
One of the options under study is to appoint incumbent Federal Law Secretary Justice Agha Rafiq Ahmed Khan — also a judge of the Sindh High Court (SHC) — as chief justice of Pakistan. He has old ties with the person who is now the appointing authority of the chief justice. Rafiq Khan’s nomination, if it comes to pass, will reflect his personal friendship and loyalty to the man on the top.
When the second PPP government inducted a large number of its cardholding lawyers as high court judges, Agha Rafiq — then district and sessions judge in Sindh — was elevated to the Sindh High Court (SHC) although he was too low on the seniority list.
As a result of the 1996 Supreme Court judgment in the Al-Jihad Trust case, all the appointees had to go home and the sessions judges, who had been promoted on the recommendation of the acting chief justices of high courts, were also affected.
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As a result, Agha Rafiq again became a sessions judge, a position he held till December 2007 when he was again elevated along with several others to the SHC. He will become a confirmed judge of the SHC a year after his promotion.
The official said Agha Rafiq was of the view that when he was a judge of the SHC, he was one step junior to Justice Abdul Hameed Dogar at that high court. He is of the opinion that since seniority has been given to all deposed judges after their reappointment he, too, should be accorded the same and made chief justice of Pakistan after the exit of Justice Dogar. He holds that his seniority should be considered from 1996 when he had to leave the SHC.
The second option is that the judge figuring on number six of the present seniority list of the Supreme Court, who is from Punjab, should be made the chief justice. At some point in the past before becoming judge, he was associated with the PPP. His sister, who is living in the United States, had, however, suffered the brutal police beating during a demonstration in front of the Supreme Court building at the height of the public protest against large-scale ouster of judges from the superior courts.
The third option under consideration is to appoint a committed PPP lawyer, especially the likes of Dr Babar Awan and Latif Khosa, as the next chief justice, keeping in view the example of that illustrious advocate Manzoor Qadir, who was directly made chief justice of the Lahore High Court during the Ayub Khan era.
Another leading lawyer Tufail Ali Abdur Rehman (uncle of Information Minister Sherry Rehman) had directly been appointed as chief justice of the Sindh High Court for the first time in Pakistan’s history.
However, never before a lawyer had been nominated as the chief justice of Pakistan. But such a proposal was seriously considered by former premier Benazir Bhutto, who was inclined to the appointment of Jehangir Badr as the chief justice of the Supreme Court. The option was somehow dropped and she had to live with a “hostile” chief justice.
Some lawyers say there is no constitutional bar in terms of Article 175 on the direct appointment of the chief justice from amongst leading advocates. The power, they explain, vests in the president. They believe the Constitution (Article 180) is clear on the appointment of an acting chief justice.
Despite hectic efforts by this scribe, neither Law Minister Farooq H Naek nor Law Secretary Justice Agha Rafiq was available for comments.
Source: The News
ALSO IN URDU
Source: Daily Jang, November 29, 2008
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Justice Tufail Ali Abdul Rehman Zubedi had served as Attorney General of Pakistan and was then a Judge of the Sindh High Court before being appointed as Chief Justice of the Sindh and Balochistan High courts. It is requested that all facts be confirmed before publication.