Double Standard of Iftikhar Ch. et al – by Ali Asad

  The Supreme Court has made public the verdict in petition filed by Kh. Haris against appointment of Mr. Irfan Qadir as Prosecutor General, NAB. The decision is in favour of the petitioner and Mr. Irfan Qadir has lost his job. The SC acted swiftly to decide a legal matter about a clause in NAB Ordinance.

Let us see what actually is the law in this regard? The prosecutor General of The NAB is to be appointed for a period of three years (un-extendible). Mr. Irfan Qadir had completed a term of three years during previous regime. This time he had been given the job anew. It had nothing to do with the previous tenure. But the great interpreters of the laws have decided as if it were an extension.

Now let us take another case. It relates to a constitutional matter. According to article 179 of the Constitution of Pakistan which reads, “A judge of the Supreme Court shall hold office until he attains the age of sixty five years, unless he sooner resigns or is removed from office in accordance with the Constitution.” We know that Khalil ur Rehman Ramday and Ghulam Rabbani have

Mr. Justice Ramday

retired after completing 65 years of age but the two have been inducted as Ad Hoc Judges. The article 182 which deals with ad hoc judges reads, “ If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,-

(a) with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or

(b) with the approval of the President and with the consent of the Chief justice of a High Court, require a Judge of that Court qualified for appointment as a judge of the Supreme Court,

to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court. Here it seems that the CJ has taken advantage of the term, “person who has held the office of a Judge of that Court” as a provision to appoint an overage person as ad hoc judge, but article 260 i.e. Interpretation makes no difference between a Judge and an Ad Hoc Judge,” “Judge” in relation to the Supreme Court or a High Court, includes the Chief Justice of the Court and also includes

(a) in relation to the Supreme Court, a person who is acting as a Judge of the Court; and

(b) in relation to the High Court, a person who is an Additional Judge of the Court”. If status of an ad hoc judge is the same as the permanent judge all the rules must apply including the age. In my opinion a person eligible for appointment as ad hoc judge would be a former judge who had resigned as a judge for any reason but is below 65 years.

Comparing the appointment of Mr. Irfan Qadir with that of Khalil Ramday we simply say that the latter is also void. Isn’t it a display

Mr. Irfan Qadir

of double standard of Mr, Iftikhar Ch?

There is still another point which raises objection over the attitude of the SC. Appointment of an official to a certain department is a trivial matter and it may be ignored. The Court still took up the matter swiftly and heard the parties summarily and gave its verdict. There is a case in SC which questions the validity of membership of The CM Punjab in the provincial assembly. As compared to the case of Irfan Qadir this case has a constitutional anomaly under article 224. The petition filed by Mr. Shahid Orakzai has been dumped in the cold storage of SC along with the petition of Mr. Asghar Khan which not seen light of the for the last 11 years. It is high time senior lawyers like Mr. Kurd and Aitizaz Ahsan prevail upon the SC to be sane and impart justice without prejudice.



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