Zardari's favoured Justice Rafiq jumps seniority ladder to next Sindh CJ

[Naveed Yaseen]

By Tariq Butt
ISLAMABAD: Federal Law Secretary Justice Agha Rafiq Ahmed is likely to be appointed as the chief justice of the Sindh High Court (SHC) after he has been accorded back date seniority from 1995.

“For the time being, Justice Rafiq is interested in becoming the SHC chief justice to be elevated to the Supreme Court to become its chief later,” a retired judge, who is a friend of the law secretary and who spoke to him the other day, told The News.

In the first instance, he said, the government wants to have its own choice as the SHC chief justice. Agha Rafiq is known to be very close to President Asif Ali since long. A Law Ministry official, however, rejected the impression that Agha Rafiq was being appointed because of his closeness to the president. He said Agha Rafiq was being selected because of his vast experience. He said the decision to appoint him was taken purely on merit and there was no pressure from any side in this regard.

With Justice Rafiq’s appointment as the SHC chief, the incumbent SHC Chief Justice Anwar Zaheer Jamali will be elevated to the Supreme Court because he has become junior to him. Agha Rafiq is one of the unique judges who have been given back date seniority of over a decade.

He has thus seen a meteoric rise in the judicial service. In December last, he was appointed as SHC justice and was confirmed as judge a few days back. Now, he has earned the distinction of being the most senior judge of the SHC.

Earlier, Agha Rafiq remained SHC judge for a brief period before he, along with several other justices of different high courts, had to go home as a result of the famous Supreme Court judgment in the Al-Jihad Trust case in 1996. He had then been promoted to the SHC from the position of the district & sessions judge in the nineties. After he was relieved from the SHC because of the apex court ruling, he was reverted to his old position of district judge and held this position between 1996 and 2007.

Another senior lawyer told this correspondent that to qualify for promotion to the Supreme Court a high court justice has to be at the high court for a mandatory period of at least five years.

That’s why, he said, Justice Rafiq cannot be promoted to the highest court because to-date he has not been the SHC judge for five years. However, the lawyer said that the backdate seniority given to Agha Rafiq could be challenged in a court, if not right now, at a later date when the present government will not be in place.

This kind of seniority to the top judicial officers is an old issue that has been agitated in superior courts for a number of times. Several judges, who were deposed on Nov 2, 2007, were given backdate seniority when they were recently re-appointed. This too has not so far been challenged in a court.

Asked whether Justice Rafiq is being made Chief Justice of Pakistan, presidential spokesman Farhatullah Babar said that he has spoken to Law Minister Farooq H Naek, who has stated that no such proposal was under consideration. Naek did not respond to the phone call as well as the SMS.

Lawyers said that if Agha Rafiq were elevated to the Supreme Court now, he would be the junior most judge at the apex court because his seniority would start from the date of his elevation. All those who were judges at the Supreme Court would be senior to him.

They said that his seniority at the SHC would not automatically make him the senior most at the Supreme Court as well. Justice Rafiq’s claim had been that he was as senior as Chief Justice of Pakistan Justice Abdul Hameed Dogar because both were appointed to the SHC at the same time.

http://www.thenews.com.pk/top_story_detail.asp?Id=19166