Is the judiciary playing politics?

Today’s Dawn includes a must-read editorial about an ongoing controversy over promotion within the judiciary. At issue is who will replace Supreme Court Justice Khalil Ramday who has reached the Constitutional age limit. The issue has become a controversy as Chief Justice Iftikhar Chaudhry wants to appoint Justice Ramday as an ad hoc judge rather than allowing the government to appoint his successor. But this is not all, as seems to be standard practice today, there is more to the story…

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.

This is all quite strange. I will not delve into any uninformed conspiracy theories here, but it will be important to watch – especially as the Supreme Court has taken center stage in the political theatre of the NRO – whether or not the Justices, and Chief Justice Chaudhry in particular, are playing politics from the bench.