Malik ASAD ALI vs FEDERATION OF PAKISTAN and others
This matter involves an interim order passed by the Supreme Court of Pakistan concerning the administrative and judicial functioning of the court amidst constitutional petitions challenging the appointment of the Chief Justice. The core legal question addressed relates to the enforcement of restraint orders against the Chief Justice from performing judicial or administrative functions and making alternative arrangements for the administration of the court. The Court held that pending the formal appointment of an Acting Chief Justice by the President of Pakistan under Article 180 of the Constitution, the senior-most Judge of the Supreme Court, Mr. Justice Ajmal Mian, shall discharge all administrative and judicial functions of the Chief Justice, including the constitution of benches. The key principle laid down is that during the restraint of a Chief Justice, the senior-most Judge is empowered to step in to ensure the uninterrupted functioning of the apex court's judicial and administrative affairs.
- Who should discharge the administrative and judicial functions of the Chief Justice when the incumbent Chief Justice is under restraint?
- Can the President of Pakistan be directed to make an immediate order appointing an Acting Chief Justice under Article 180 of the Constitution?
- Article 180, Constitution of Pakistan 1973
ORDER
1. While we were in the mids of arguments on Constitutional Petition No,248-Q of 1997 in which the question of validity of the appointment of Honourbale Chief Justice of Pakistan, Mr. Justice Sajjad Ali Shah is in question, we were informed by the learned Attorney-General that another Bench of this Court comprising Mr. Justice Sajjad Ali Shah, the Hon'ble Chief Justice (under restraint), Mr. Justice Muhammad Bashir Jehangiri and Mr. Justice Muhammad Arif has passed an order suspending 13th Amendment in C.P. No,35 of 1997. We are sorry to note that under the orders of Quetta Bench of this Court passed in C.P. No,248-Q of 1997 on 28-11-1997, a very specific order was made that during the pendency of the petition, Honourable Chief Justice (Mr. Justice Sajjad Ali Shah) shall not perform any judicial or administrative functions. We adopt and re-affirm the said order and accordingly direct the Federal Government as well as the President of Pakistan to make an immediate order under Article 180 of the Constitution appointing Mr. Justice Ajmal Mian, the senior most Judge of this Court as Acting Chief Justice of Pakistan. In the meantime, as this appointment is likely to take some time, we further direct that pending appointment of Acting Chief Justice, Mr. Justice Ajmal Mian, the senior most Judge of this Court will discharge administrative as well as judicial functions of Chief Justice of this Court including the constitution of the benches. The office is directed that no further order constituting the Benches should be taken from the Hon'ble Chief Justice (under restraint). Such orders and other orders regarding day to day working and administration of Court shall be obtained from Mr. Justice Ajmal Mian until appointment of Acting Chief Justice.
2. A copy of this order shall be sent to the Federal Government as well as to the President by fax today, for compliance.
2. (Sd.)
3. Saiduzzaman Siddiqui, J.
4. (Sd.)
5. Fazal Ilahi Khan, J.
6. (Sd.)
7. Irshad Hasan Khan, J.
8. (Sd.)
9. Raja Afrasiab Khan, J.
10. (Sd.)
11. Nasir Aslam Zahid, J.
12. (Sd.)
13. Munawar Ahmad Mirza, J.
14. (Sd.)
15. Khalil-ur-Rehman Khan, J.
16. (Sd.)
17. Sh. Ijaz Nisar, J. (Sd.)
18. Abdur Rehman Khan, J.
19. (Sd.)
20. Sh. Riaz Ahmad, J.