Judges elevation a constitutional mandate, says Khawaja Asif

ISLAMABAD: Minister for Water and Power Khawaja Muhammad Asif Sunday said elevation of the judges of superior judiciary was made purely in accordance with the constitutional mandate and command.

The minister, in a statement here, said certain quarters known to be notorious in maligning others in order to justify their existence had now started to malign the highest judicial office of the state. "The smear campaign is rampant on the social media designed specifically to undermine certain offices whose sanctity is sine qua non for the independent functioning of the justice system of the country," he added.

Khawaja Asif, who is also Minister for Defence, said Justice Mian Saqib Nisar was elevated to the position of the Chief Justice of Pakistan (CJP) strictly on merit and in accordance with Article 175A (3) of the Constitution which provided that the senior most judge be appointed as the CJP. "The government or the Prime Minister has no role in his appointment. The appointment of any other person would have been unconstitutional," he maintained.

The minister said after the decisions in the Al-Jehad Trust and Sajjad Ali Shah cases and the 18th Amendment to the Constitution, only the senior most judge of the Supreme Court could be appointed as its chief justice. Justice Saqib Nisar, he said, being the senior most judge alone could have been appointed as the chief justice, which was the constitutional mandate.

The appointment of anybody else would have been a violation of the constitution, he added. The minister said Chief Justice Mian Saqib Nisar was indeed the law secretary but appointed as the first non-judge after Sir Edmund Nelson for three reasons: 1. The Al-Jehad decision appeared to suggest that judges should not be appointed to such positions, 2. Chief Justice Sajjad Ali Shah made it clear that no judge would be made available for this post, 3. Khalid Anwar, a lawyer of great eminence was the Law Minister and Saqib Nisar was his choice as the law secretary. 

He said, "The appointment of Saqib Nisar as an additional judge of the Lahore High Court was made on the recommendation of (then) Chief Justice of the LHC and in consultation with then Chief Justice of Pakistan Ajmal Mian."

He said, “At the time of this appointment the Al-Jehad Trust Judgement was already in the field and the advice of the chief justice was binding on the Executive.”

"He was confirmed as a judge of the High Court by former President Pervez Musharraf in consultation with then Chief Justice Irshad Hassan Khan. Later, he was appointed to the Supreme Court of Pakistan on the binding advice of then Chief Justice of Pakistan Iftikhar Muhammad Chaudhry by former President Asif Ali Zardari," he added.

Khawaja Asif said, “At the time of his oath taking, former chief justice Iftikhar Muhammad Chaudhry had praised Justice Nisar and applauded his contributions and sacrifices towards the cause of the independence and sanctity of the judiciary by acting independently and not succumbing to the political desires of the government."