JURIST Guest Columnist Moeen Cheema, professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan, says that the suspension of Pakistan Chief Justice Iftikhar Muhammad Chaudhry by President Pervez Musharraf shows that the country's military leadership has finally overreached itself by assailing the country's last independent public institution, the judiciary…

The Chief Justice of Pakistan was unceremoniously suspended from office on Friday, March 9, for alleged misconduct. In fact, to be legalistic, the Chief Justice was made ‘non-functional’ and an acting Chief Justice was appointed in his place. The President of Pakistan, the military strongman going by this recent evidence, has also referred his case to the Supreme Judicial Council.

The Chief Justice has been detained in his residence and his movements restricted. He was not allowed to meet with a number of lawyers, journalists, politicians and brother justices who showed up at his doorstep over the last three days. It was widely rumored that he was being pressured to resign rather than undergo a judicial inquiry before the Supreme Judicial Council, the first hearing for which has been scheduled for today, Tuesday, March 13. The Chief Justice has now communicated his desire to defend himself and has insisted on a public hearing of his case.

The legal community in Pakistan is up in arms. All of the leading bar associations have openly protested against the action of the President. By latest accounts, a protest rally organized by the legal fraternity in Lahore was violently dispersed by the police resulting in injuries to a number of the participants.

The Legal Debate

The incident has sparked a contentious legal debate between government functionaries, foremost among them being the federal Law Minister Mr. Wasi Zafar, and representatives of various bar associations. The bar councils’ leaders are arguing that although the President has the power to refer a case of misconduct by a judge to the Supreme Judicial Council, he does neither have the power to suspend, or render non-functional, such a judge nor the authority to appoint an acting Chief Justice. An overwhelming majority in the legal community, including most Supreme Court advocates, have supported the stance of the bar associations.

However, it must be pointed out that Article 209 of the Constitution of Pakistan, 1973, does not contemplate an action against the Chief Justice. The article states that the composition of the Supreme Judicial Council shall be as follows: the Chief justice, the two next most senior judges of the Supreme Court and the two senior-most Chief Justices of the High Courts. The government has argued that since the Chief Justice cannot be judge of his own cause, he therefore has to be replaced, and that in such a scenario Article 180 should come into play. Article 180 empowers the President to appoint the next senior-most judge of the Court as an acting Chief Justice in case of the existing Chief Justice’s incapacity to function.

The composition of the Supreme Judicial Council in this particular case has also raised a number of additional issues. The acting Chief Justice was appointed in a hurry and took oath within hours of the notification suspending the Chief Justice. He shall sit on the Supreme Judicial Council in his new-found capacity. Justice Rana Bhagwan Das, the most senior judge on the bench after the suspended Chief Justice and the only minority judge on the bench, is presently in India and hence could not be made the acting Chief Justice. This raises the question whether he will be appointed as the acting Chief Justice and included in the Supreme Judicial Council upon his return.

It is also being argued that the current acting Chief Justice, Justice Javed Iqbal, has discredited himself from sitting on the Supreme Judicial Council by taking the oath of office in circumstances when the existing Chief Justice was in detention in the Army House. Similarly, Justice Addul Hameed Dogar, another member of the Supreme Judicial Council, has lost some credibility by administering the oath to the acting Chief Justice in such a hurried fashion and publicly congratulating him in this dark hour. Justice Chaudhry Iftikhar, Chief Justice Lahore High Court and another member of the Supreme Judicial Council, is known to be a vocal opponent of the Chief Justice of the Supreme Court. There are several applications of serious corruption charges against him, all of which are pending to be referred to the Supreme Judicial Council. Justice Sabih-ud-Din, Chief Justice of the Lahore High Court and another member of the Supreme Judicial Council, is alleged to be a victim of the misconduct of the Chief Justice’s desire for protocol and official facilities.

Most importantly, the reference appears to be prima facie based on mala fides. The exact nature of the allegations have not been made public. The reference is rumored to be based on an open letter written by a lawyer, known more for his media appearances than legal acumen. The said letter, the contents of which have now been widely publicized, contains no allegation of corruption. Instead, it criticizes the Chief Justice for his desire for protocol, extravagant public expenditure on his official residence and office, and his role in the illegal transfer of his son to an important law enforcement position. In a society where a number of judges are believed to be corrupt; where references are pending against several members of superior judiciary, where every public functionary craves protocol and extravagant public expenditure; where both the federal law minister and his son conveniently escape prosecution after brutally committing public assaults, it is ironic that the Chief Justice is being singled out for what appear to be petty charges in comparison.

The Political Games

The context to this legal wrangling is provided by a number of high profile politically charged cases that are likely to come before the Supreme Court in the next few months. These cases are expected to include a ruling on the legality of the President’s re-election by the existing legislative assembly dominated by the so-called King’s party or the postponement of the elections and a declaration of emergency if the elections scheduled for end-year 2007 are postponed.

Although the Chief Justice was not believed to be an individual likely to take on the President himself, some of his recent decisions caused significant nervousness amongst the upper echelons of government. These include the decision overturning the privatization of the steel mills which directly implicated the Prime Minister Shaukat Aziz in the under-priced sale of a strategic national asset. Petitions of habeas corpus filed by the Human Rights Commission of Pakistan on behalf of the families of those ‘missing persons’ believed to have been illegally detained by national security agencies as part of Pakistan’s cooperation in the War on Terror were also entertained by the Chief Justice. Many of these missing persons are believed to be in Guantanamo Bay, and the petition has caused severe embarrassment for the government.

Long-Term Implications

The message, whether intended or not, that has been received by the public through this action of the President is that he has become a military dictator in the true sense of the word. The façade of a hybrid system of governance characterized by a mixture of limited democracy and benevolence that this military regime had erected so successfully through manipulated elections, ill-conc
eived devolution plans, economic stability and freedom of the media has suddenly fallen. Caesar has shown his face and it is not a pretty sight.

The public confidence in the judiciary, the last standing institution, has been placed on the guillotine. The Supreme Judicial Council is expected to play the part of the executioner in the coming days. The crisis of confidence is such that no one expects the Chief Justice to win even though an overwhelming majority believes that the charges are misplaced and politically motivated. The biggest loser in the long term, however, is likely to be the Army.

Every institution has now been held accountable by this military regime,
although on a patchy and politically motivated fashion, save the army
itself. Now that all institutions and branches of government have been
held subject to accountability (but not accountable), in the least we must
ask why the serving and retired Army personnel thrust upon every civil
institution are immune from prosecution!

Moeen Cheema is an Assistant Professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan
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