BEFORE partition, united India was ruled by the British government under the Government of India Act, 1935. In 1947, the British left after partitioning the country into India and Pakistan as independent dominions with full freedom of self-rule. It was made clear that until both countries made their own constitutions, they would continue to be governed by the Government of India Act read with the Indian Independence Act, 1947 to ensure the continuation of legal order.
After making their constitutions, both countries could repeal the Government of India Act, 1935 and became sovereign independent countries and exercise their discretion when it came to joining the commonwealth. India made its constitution in 1949, while the Constituent Assembly of Pakistan passed the Objectives Resolution in 1949 to incorporate the Islamic way of life in the constitution. This resolution became a preamble in the first constitution of 1956, the second constitution of 1962 and third constitution of 1973. It is now incorporated as substantive part as Article 2A.

It is common knowledge that the constitution is the supreme document of the country providing a system of governance and all other laws made by the legislature are subordinate to it, including customary law, traditions and conventions. Any law, which is inconsistent with or opposed to the constitution can be declared invalid by the courts. The position of England is different, because England has one of the oldest monarchial systems with an unwritten constitution. However, it depends on the rule of law and survival of traditions and conventions which have preserved their history and monuments including the facade of their houses with uniformity manifest in their exterior and shape and in the measurement of plots.

In Pakistan the position is entirely different. We have the 1973 Constitution which is our supreme source of law. All laws must conform to and fall within the four corners of the constitution. Like India, we have also borrowed the judicial system from the Government of India Act, 1935 and while rewriting the provisions with regard to the appointment and removal of the judges of the superior courts, we have not used simple and unambiguous language, which has caused great confusion.
The Supreme Court has delivered judgments in the process of interpretation. One such confounding situation is whether the Chief Justice of Pakistan can be appointed directly by the president at his discretion or is to be the senior-most judge. In the constitution Article 177 clearly provides that the Chief Justice of Pakistan shall be appointed by the president and each of the other judges shall be appointed by the president after consultation with the chief justice. So the process of consultation starts with the appointment of a judge of the Supreme Court and not with the appointment of the chief justice. In the Al Jehad Trust case (judges case) the Supreme Court laid the rule of seniority to be followed in case of the appointments of judges where consultation is involved and not where consultation is not involved.

One view in legal circles propounded in favour of convention in the English courts is that the most senior judge in the Supreme Court be appointed as the Chief Justice of Pakistan, as is done in the appointment of acting chief justice as contained in Article 180 of the Constitution is not logical for two reasons.

Firstly, England does not have a written constitution so convention has the force of law.
Secondly, in Article 180 of our constitution the words “most senior of other judges” have been added by amending the provision of P.O. 14/1985 and likewise Article 177 can be amended by putting the same words for appointment of the Chief Justice of Pakistan and the whole controversy will come to an end. Now democracy is restored and parliament is supreme, and the army chief is summoned to brief the parliamentarians. Why is this amendment not made when this is a coalition government of the PPP, the MQM and the ANP and a friendly opposition in the shape of the PML-N? All believe jointly in the rule of law and the independence of the judiciary. It is only a question of a two-thirds majority where the PML-N would love to join in and cooperate. The sooner it is done the better as it would be for forging unity and allowing the government to deal with other important issues.

The writer is a former Chief Justice of Pakistan.