Dr. Farooq Hassan, Bar at Law,
Professor of International Law, Harvard University

The military run administration in Islamabad stuck back at the top Pakistani Judge of its apex court. Chief Justice Iftikhar Chaudhry has been suspended by President Pervez Musharraf for “misuse of authority”. The president has asked the Supreme Judicial Council, which oversees the judiciary, to investigate the charges.

The military regime in Pakistan has seldom given any hope to the country’s well wishers abroad and within the country to return to barracks as mandated by the Supreme Court’s ruling in Zafar Ali Shah’s case by 2002. Now well beyond that time frame, its clear that this demolition of the judicial independence of the nation is to ensure that the judges will personally pay who dare to affirm their integrity in this year when the general is evidently hell bent upon staying in power for the third time, irrespective of what the Constitution or the electorate says.

From the corridors of Harvard Law to the leading newspapers of the Western world, this act of the incumbent regime has brought great shame to the country and established its repressive nature and, beyond any doubt, shown to the world its true colors. A British law professor colleague of mine who is now a judge of that premier judicial institution of world in Holland, the World Court, phoned me minutes ago to confirm similar disgust in Europe against this ferocious injury to the regime of the rule of law was visible in Europe.

As the main judge in the Supreme Court, Chief Justice Chaudhry had begun to accumulate a reputation for taking a firm line against government misdemeanors and human rights abuses. For his judicial activism he had also faced minor criticisms, most of which had nothing to do with his judicial work but over the style of his running that exalted office.

As I write this script on the morning after this news was flashed on our TV screens as a “breaking story” - just over 12 hours ago the details of Chief Justice’s alleged offences are not yet clear.

The facts as we know of them from scattered print and TV reports thus far are as follows. President Musharraf according to the Government sycophants, and God knows they are a dime a dozen in this country, had received “numerous complaints and serious allegations for misconduct, misuse of authority and actions prejudicial to the dignity of office of the chief justice of Pakistan,” the state-run Associated Press of Pakistan news agency reported. Chief Justice Chaudhry was, according to such reports, summoned on Friday afternoon to explain himself to the General and Prime Minister (whom Musharraf had nominated from a New York Bank). As is typical in all despotic regimes, after this meeting I heard on the BBC that the Chief Justice was unceremoniously sent back. He had already been suspended by a notification of the Law Ministry bearing number No.F1 (2) /2005A.ll dated 9 March 2007. It is clear that this suspension by the Government is itself ultra vires since the Constitution gives no such power to the Executive against a sitting judge of the Supreme Court. The manner and speed at which this all took place also echoes strong male fides of the Musharraf regime.

His case was then referred to the Supreme Judicial Council which will decide if Chief Justice Chaudhry should be removed from office. This reference to an institution never called into a session like this before, and known as the Supreme Judicial Council of Pakistan, is essentially designed to correct judicial improprieties since, otherwise, technically superior court judges are in theory “irremovable”.

But it is only a theory. It is trite knowledge in Pakistani legal circles that a legal advisor to the General, and to all previous military regimes as well in living memory, has plenty of devices to achieve such goals. General Musharraf has now achieved which no previous military regime in Pakistan had done before. Since Chief Justice Saeeduz Zaman Siddique was also removed on 25th January 2000 by him, he has now the dubious distinction of having the scalps of two heads of the judiciary in his trophy case.

Justice Chaudhry throughout his tenure was vigorously an activist. He heard many cases suo moto about human rights abuses perpetrated by the government and also gave landmark judgments against the Musharraf regime. The most well-known of them being, The Steel Mills case in which he set aside, for impropriety, the alleged sale of this State enterprise for peanuts to private corporations. In this case indirectly both the General and the Prime Minister’s mishandling of this deal was the subject of courts’ ultimate holding. He took up investigations into the highly sensitive issue of the disappearance of political activists allegedly detained illegally by the security forces. Some of the police stations heads were then summoned to the Supreme Court and faced contempt proceedings.

Against this background, the criticism that has been leveled against the Chief Justice relates to the following matters. I presume from media reports that the charges of this highly strange action of the military regime against the country’s judiciary are taken almost verbatim from a local lawyer’s open letter to the Chief Justice. This letter was published about his behavior towards (1) Pakistan’s bar association, (2) of allegation that he used a bigger official car than a 1600 cc and that (3) he had his official residences and offices lavishly redone. All of these are hardly judicial misdemeanors in a country which ranks amongst the leaders of corruption in the world and where the Constitution is worth as much as a military General would allow it to be so considered. The only other publicly known wrong doing which the Chief Justice was said to be ”involved” in was that, recently, a number of private television stations carried reports about his son’s appointment to a senior police post amid claims that he was not qualified for the position.

In due course, no doubt, more light will be shed on this great tragedy to the country’s reputation. For the first time in the judicial history, a presidential reference has been moved before the Supreme Judicial Council against the Chief Justice of Pakistan equally creating an unprecedented situation. In addition, it remains now to be seen what effects the institution of judiciary will receive from this presidential move; whether the reference is accepted or rejected, the legal edifice has been weakened to a dictatorial philosophy.

It seems that, under article 209, filing of the reference is valid; however it is not beyond question whether or not Chief Justice of Pakistan can be “tried” by the Council at all. A view by a former Chief Justice of Pakistan is that for proceedings against the CJP the said Article 209 is ambiguous. He says the article specifically names CJP as Chairman of the Council therefore proceedings under an Acting CJ would be at best debatable.

What is the constitutional status of Justice Iftikhar Muhammad Chaudry after the reference against him? It is clear that he still is the Chief Justice of Pakistan but, apparently, without functions of the office both on the administrative and the judicial sides. Justice Chaudhry will stay as Judge Under-suspension until action is taken on the recommendation, which the Council would put before the President after completion of proceedings. His removal can only come through the President, after recommendation of the Council. During the interregnum period, the learned judge will continue to be a part of the judiciary.


Would Justice Rana Baghwandas, being senior most in the present set up, be competent to preside over the Council? I would personally think so. But I see from reports of the media that at least one senior jurist of the country, former CJP Saeeduz Zaman Siddiqui, feels that as the Council has to be presided over the CJP, who has to also head the Shariat Appellate Bench of the Supreme Court, a prerogative of a Muslim CJ, thus only a Mulim can have this post. However, this sounds most undemocratic to suggest that a non Muslim cannot be the Chief Justice. After all, the most honorable of the honorable Chief justices of the Supreme Court was Justice Cornelius, a Christian, who alone had the moral courage, more than shown by his Muslim brothers on the Bench, to have given landmark dissenting Opinions in Dooso and Tamizuddin Khan cases.

I have also seen reports on the internet suggesting strongly that, since the Friday afternoon, the Chief Justice has been paced incommunicado by being placed in a situation like a house arrest. There is also news from his relatives that the Government has put tremendous pressure on him to resign. These reports, if true, deserve our strongest condemnation. Explaining proceedings of the Council it may be said they would be a full fledged trial, wherein Justice Chaudhry has to be given full opportunity to defend himself through counsel and cross-examine the evidence against him. After the executive has moved against Justice Chaudhary, it is entirely now up to the judiciary to decide the matter.

The executive cannot intervene in the proceedings, except to substantiate the charges through credible evidence. Constitutionally no time limit is fixed for deciding the reference. However, in view of the highly sensitive nature of the matter and that the independence of the institution of judiciary is being challenged, it is necessary that the earliest possible completion of these proceedings may occur, which begin on 13th March 2007. It may be mentioned that it is for the first time that a reference has been filed against a Supreme Court judge under the 1973 Constitution. Previously, three judges of the Lahore High Court, namely Justice Shaukat Ali, Justice Fazle Ghani and Justice Ikhlaq Hussain, had to face such references; the latter two resigned before the proceedings.

As a lawyer, I was a junior counsel with Manzur Qadir when the earlier of these cases had came up for hearing. I know, therefore, the nature of such matters; I only hope that, notwithstanding pressures the Chief Justice may currently face, he has the fortitude to go though this ordeal. Democracy and dictatorship are at opposing ends of this struggle. Who should at least put up show is self-evident.

Before closing, let me state an important point. The previous four cases of process against judges of the Lahore High Court were based on alleged peccadilloes. This case, on the other hand, is heavily steeped in suspicions in the prevailing political situation in the country. It is maintained that, with the coming elections this year, the challenges to General Musharraf’s continuity to rule are bound to end up in the country’s Supreme Court. So doesn’t a terrified judicial branch more to the General’s liking than one with a bold head of the country’s highest court?

This case looks more like the removal of Chief Justice Coke five hundred years ago when the British Monarch threw him out on flimsy pretexts rather have an independent Chief Judge. Only history can tell us whether we have, as Muslims, even a semblance of the proud heritage left now that we do not stop about bragging ad infintum.

Habaes Corpus petition

Trackback this Post | Feed on comments to this Post